PUBLISHED OPINIONS
TERM 2007 - 2008

This case came before the Supreme Court on May 13, 2008, on appeal by the defendant, Rosalia Lopez-Navor (Lopez-Navor or the defendant), from a judgment of conviction entered in the Family Court upon a jury verdict of criminal neglect of a child, in violation of G.L. 1956 § 11-9-5. This appeal is part of a trio of cases arising from the horrific abuse that was inflicted upon Lopez-Navor’s child, Alexis L., at the hands of his father, Raul DeRosas (Raul).
On April 14, 2004, a criminal information was filed charging Lopez-Navor with one count of criminal neglect of a child, and she was convicted after a jury trial. The defendant testified that she was afraid to report the violent behavior of her husband, Raul DeRosas (Raul), violent behavior because he threatened and intimidated her and told her that if she tried to seek help she would be deported to Mexico and lose her son. The trial justice denied the defendant’s motion for a new trial. The defendant has been deported.
On appeal, Lopez-Navor contended that the trial justice erred when he: (1) rejected defense counsel’s request to instruct the jury on the defense of duress, (2) did not allow into evidence Raul’s confession to the Providence police, and (3) permitted an uncertified Spanish interpreter to participate in the proceedings.
The Court held that the defendant was not entitled to a duress instruction because the evidence presented did not warrant one. The Court also held that the trial justice acted appropriately in excluding Raul’s confession because it was irrelevant to the guilt or innocence of the defendant. Finally, the Court discerned no error in the trial justice’s allowance of a Spanish interpreter who was not certified.
For these reasons, the Court affirmed the judgment of the Family Court.
 

The plaintiffs in this case – Providence Lodge No. 3, the Fraternal Order of Police, Keith LaFazia, and Joseph Sarrasin (the plaintiffs) – appealed from a declaratory judgment and order entered in favor of the Providence External Review Authority, the City of Providence, and David N. Cicilline, in his capacity as mayor of the City of Providence (the defendants). On appeal, the plaintiffs contended that the trial justice erred in: (1) refusing to strike down the Providence External Review Authority, Section 18½-2 of the Providence Code (PERA Ordinance) as unconstitutional; (2) failing to find that the PERA Ordinance was preempted by G.L. 1956 chapter 28.6 of title 42, “Law Enforcement Officers’ Bill of Rights,” (LEOBOR); and (3) erroneously construing this Court’s decision in City of East Providence v. McLaughlin, 593 A.2d 1345 (R.I. 1991), in which we held that an initial investigation, not conducted by law enforcement, did not transgress the provisions of LEOBOR. After reviewing the record in this case, the Court concluded that the PERA Ordinance did not violate the Rhode Island Constitution, declined to interpret LEOBOR in a manner that would modify a federal court consent decree, and deemed the trial justice’s application of McLaughlin to be appropriate. The Court affirmed the judgment of the Superior Court.

In re Victoria L No. 2006-85-Appeal. (July 10, 2008)

Rosalia Lopez-Navor (Lopez-Navor or the respondent) appealed from a Family Court decree terminating her parental rights to her daughter, Victoria L. The respondent, a native of Mexico, illegally entered the United States in August 2003, and arrived in Providence with her son, Alexis L., to be reunited with Alexis’s father, Raul DeRosas (Raul). The reunion soon resulted in a second pregnancy that produced Victoria, who was born on June 16, 2004. The Department of Children, Youth and Families (DCYF) became involved with the family after bruising and lacerations were discovered on Alexis. Lopez-Navor denied any involvement in the abuse. She was charged with cruelty to or neglect of the child under G.L. 1956 § 11-9-5, for failing to protect him from Raul.
In June 2004, the DCYF placed a hold on Victoria shortly after her birth. On October 22, 2004, a Family Court justice entered a decree terminating Lopez-Navor’s parental rights to Alexis. A month later, on November 22, 2004, DCYF filed a petition to terminate Raul and Lopez-Navor’s parental rights to Victoria. Meanwhile, on March 16, 2005, while this termination petition was pending, a jury found the respondent guilty on the felony charge of cruelty to or neglect of Alexis.
After a Family Court trial on the termination petition concerning Victoria, the trial justice found by clear and convincing evidence that Lopez-Navor was unfit to parent Victoria.
The Supreme Court affirmed the decision, concluding that the trial justice appropriately based his decision on the clear and convincing evidence that Lopez-Navor allowed her other child to suffer cruel and abusive treatment, and then covered up for the wrongdoer.
The trial justice also appropriately analyzed the education, employment, training, and experience of the respondent’s alleged expert witness; he concluded that she was not qualified to render an opinion about domestic violence among immigrant women. Although the trial justice should have allowed an offer of proof, the Supreme Court found no error in the refusal to do so in the context of this case.
Finally, there is no regulation or statute requiring that the child be placed with her biological family. Although the Court has acknowledged the importance of maintaining familial ties — once the trial justice makes a finding of unfitness — the overriding consideration is the best interest of the child, which outweighs the interests of the state, the natural parent, and other family members. In re Carlos F., 849 A.2d 364, 366 (R.I. 2004). The evidence in this case supported the conclusion that kindred placement of Victoria was not in her best interest.
For the reasons set forth in this opinion, the judgment of the Family Court was affirmed.
 

Elizabeth Willis, et al  v  Maurice Omar No No. 2007-164 ( July 9, 2008)

This case came before the Supreme Court on appeal by the plaintiff, Elizabeth Willis, individually, and as mother and natural guardian of Brianna Mari Serapiglia (the plaintiff), from a Superior Court judgment in favor of the defendants, Maurice Omar and Barbara Omar (collectively the defendants). The plaintiff appealed to this Court, arguing that the trial justice erred in granting the defendants’ motion for summary judgment.
The plaintiff looked to the Supreme Court to create a new cause of action―one that imposes a duty on a social host to protect a person from injury resulting from alcohol consumption by the guest or a drunk driver who leaves the party and causes injury or death. The Court declined to do so and noted that it consistently has refused to adopt the principle that a social host owes a duty to a third party for injuries suffered by an intoxicated guest who was imbibing at his or her home, and has only imposed such a duty when a special relationship exists. See Ferreira v. Strack, 652 A.2d 965, 967 (R.I. 1995) (holding that, absent a special relationship, social hosts do not owe a duty of care to individuals injured by an intoxicated driver who was previously drinking at the defendants’ home). The Court declined to adopt a liability standard for social hosts whose adult guests cause harm, and declared that such a question belongs in the Legislature.
Additionally, the Court held that the trial justice acted appropriately in refusing to find civil liability on the defendants’ part for aiding and abetting a criminal act under G.L. 1956 § 11-1-3. The Court also rejected the plaintiff’s argument that G.L. 1956 § 3-14-5, the “Rhode Island Liquor Liability Act,” imposes liability on a private individual for serving alcohol in a social setting.
For these reasons, the Court affirmed the judgment of the Superior Court.

 

Town of Burrilville, et al v. Pascoag Apartment Assoc., LLC No 2005-35MP (July 3 2008)

The Supreme Court issued a writ of certiorari to review the State Housing Appeals Board’s (SHAB) decisions that three separate applications for comprehensive permits submitted by Pascoag Apartment Associates, LLC and Yorkshire Properties (Pascoag), Crystal Lake Builders, LLC (Crystal Lake), and East Avenue Development Realty, LLC (East Avenue), under the Low and Moderate Income Housing Act, G.L. 1956 chapter 53 of title 45, were, as of February 13, 2004, substantially complete under § 45-53-6(f)(1). The three applicants presented plans and documentation to the Town of Burrillville Zoning Board of Review early in 2004. While the applications were pending, the General Assembly imposed a moratorium on the use of comprehensive permit applications by private, for-profit developers such as the ones in this case. Only those applications that SHAB deemed to be substantially complete as of February 13, 2004, were allowed to proceed. SHAB made such a determination for all three of the projects under review.
The Supreme Court determined that “substantial completeness” was an ambiguous statutory phrase, and the Court afforded deference to SHAB’s interpretation of substantial completeness that it adopted during the course of adjudicating the three applications. Using an “ordinary and plain meaning standard,” SHAB defined “substantial” to mean “material,” “important,” and “essential,” and the term “complete” to mean “having all parts or elements.”
Nevertheless, the Supreme Court reversed SHAB’s finding of substantial completeness with respect to the comprehensive permit applications from Pascoag, Crystal Lake, and East Avenue. Upon review of SHAB’s hearings and written decisions on the three applications, the Court found that SHAB misapplied its own definition in determining substantial completeness for each application. SHAB’s decision-making focused upon sufficiency rather than substantial completeness, and it repeatedly considered whether the applications contained enough information for the town to “get started.” The Court concluded that SHAB acted in an arbitrary and capricious manner when its actions did not comport with its own definition of substantial completeness.
The Court also reviewed whether the three applications were substantially complete under SHAB’s definition of the phrase. Throughout the analysis, the Court remained cognizant of the purposes and structure of the Low and Moderate Income Housing Act, including the General Assembly’s imposition of the moratorium on for-profit applications to protect the public health and welfare and to cull out eleventh-hour proposals that were drafted and filed hastily to avoid the well-publicized impending moratorium. The Court concluded that legally competent evidence did not exist in the record for each application in light of SHAB’s adopted definition for substantial completeness.

 

State v. Russell, et al No. 2004-338-C.A. (July 3, 2008)

The defendants, Rohan Russell and Fode Sidibe, appealed from a judgment of conviction on two counts of first-degree sexual assault for which they were sentenced to twenty years, with eight years to serve. Both the defendants asserted that the hearing justice erroneously denied their pretrial motion to dismiss the indictment because the prosecutor failed to present substantially exculpatory evidence to the grand jury. The defendants also made other allegations of prosecutorial misconduct relating to the grand jury, and contended they were denied due process and equal protection of the law because they were not appointed counsel either before or during the secret grand jury proceedings. In addition, Mr. Sidibe argued that the trial justice improperly denied the defendants’ motion for a new trial.
The Supreme Court affirmed the judgments of conviction. Because the Court determined that no substantially exculpatory evidence existed in the case, it held the Superior Court did not erroneously deny the motion to dismiss the indictment for failure to present substantially exculpatory evidence to the grand jury. The Court also rejected the defendants’ other allegations of prosecutorial misconduct, noting that a motion to dismiss an indictment is an extraordinary remedy reserved for instances of flagrant prosecutorial misconduct accompanied by severe and incurable prejudice. The Court further observed that the alleged misconduct and errors in the grand jury proceedings were rendered harmless by the defendants’ subsequent convictions by a petit jury.
Turning to the defendants’ argument relating to the assistance of counsel before and during grand jury proceedings, the Court found that the defendants waived appellate consideration of the issue because they did not raise it in a rational and recognizable posture to the Superior Court. Finally, the Supreme Court declined to reverse the trial justice’s denial of the motion for a new trial. The Court reasoned that the Superior Court articulated an adequate rationale and did not overlook or misconceive material evidence.
 

State v. Lead Industries Association, Inc., et al, No. 04-63 (CORRECTED)

In this landmark lawsuit, filed in 1999, the then Attorney General, on behalf of the State of Rhode Island (the state), filed suit against various former lead-pigment manufacturers, seeking to hold them liable under a public nuisance theory.  After a four-month trial, a jury found the defendant manufacturers, NL Industries, Inc., The Sherwin-Williams Co., and Millennium Holdings LLC (collectively defendants), liable for public nuisance.  The jury found that a fourth defendant, Atlantic Richfield Co. (ARCO), was not liable. 

Various appeals were taken from several judgments rendered by the Superior Court and, because of the sheer number of parties and the complexity of issues involved, the Supreme Court consolidated all the appeals and established a five-track procedure for the briefing of all pending appeals and cross-appeals. 

Track I of the Supreme Court’s opinion addressed the defendants’ appeal from a judgment of abatement rendered in favor of the state.  The defendants argued that the trial justice erred by misapplying the law of public nuisance.  The Court agreed, and concluded that the trial justice erred by denying the defendants’ motion to dismiss.  The Court reasoned that under no set of circumstances could the facts that were pled in the state’s complaint rise to the level of public nuisance.  More specifically, the Court noted that absent from the state’s complaint was any allegation that the defendants had interfered with a public right as that term long has been understood in the law of public nuisance.  Equally problematic for the Court was the absence of any allegation that the defendants had control over the lead pigment at the time it caused harm to children.  Therefore, the Supreme Court reversed the judgment of abatement entered by the Superior Court.

Track II of the Supreme Court’s opinion addressed the state’s cross-appeal on the issue of compensatory damages.  The state argued that it was improper for the trial justice to dismiss the state’s claim for damages in excess of $26 million.  Because the Court had concluded that the tort of public nuisance was not the proper cause of action to proceed against the defendant lead-pigment manufacturers, it did not reach the state’s argument with respect to compensatory damages. 

Track III of the Supreme Court’s opinion addressed the state’s appeal from the trial justice’s grant of a judgment as a matter of law under Rule 50 in favor of ARCO.  Because the Court had concluded in Track I that the trial justice erred in denying the defendants’ motion to dismiss under Rule 12(b)(6), it addressed neither the state’s arguments regarding ARCO’s liability nor ARCO’s conditional cross-appeal.

Track IV of the Supreme Court’s opinion addressed the state and the Attorney General’s appeal of contempt orders entered in December 2005 and June 2006 against the state Attorney General.

On November 3, 2005, after the Attorney General made various extrajudicial comments to the press concerning this case, the trial justice entered an order that required the Attorney General to comply with Article V, Rule 3.6 of the Supreme Court Rules of Professional Conduct.  Nevertheless, the Providence Journal later reported that when the Attorney General was questioned about the defendants and their counsel, he said “[w]e want to continue our search for justice before this jury and not give in to those who would spin and twist the facts.”  Based on this comment, a sua sponte contempt hearing was held and the Attorney General was found to be in civil contempt.  On December 6, 2005, the trial justice memorialized this decision in an order, which directed the Attorney General to pay $5,000 to the clerk of the Providence County Superior Court as a sanction.

At that time, the trial justice also amended the original November order by adding paragraph 1.1, which said: “The Court directs the Attorney General to cease and desist from making any subjective characterizations of the defendants or any of them or of their agents, servants or attorneys.”  Soon after, the trial justice also cautioned the parties: “I don’t want any discussion with this jury by anyone with respect to what motivated them to reach the decision that they did or anything else about the case.”  On February 22, 2006, the Attorney General posted a statement on his official website that thanked the jurors for their service.  On the following day, the Boston Globe reported that the Attorney General said: “The companies failed to step up and clean up the problem they created * * *.  The legal process has held them accountable and said you can’t duck and run.”

Based on the Attorney General’s “duck and run” comment and the website posting, a second contempt hearing was held.  The Attorney General once again was found to be in contempt and he received a $10,000 sanction.  The state and the Attorney General appealed the trial justice’s findings of contempt and his imposition of sanctions.   On appeal, they argued that the Attorney General had a common-law privilege and a duty as a constitutional officer to comment on the case.  They also alleged that the trial justice’s application of Rule 3.6 was unconstitutional because it violated the Attorney General’s First Amendment rights.  They contended that paragraph 1.1 of the Superior Court’s December order was unconstitutionally vague and overbroad, and that the Attorney General’s website posting did not violate any of the Superior Court’s prohibitions.  Finally, the state and Attorney General argued that the penalties imposed by the trial justice were excessive. 

The defendants countered that (1) the trial justice’s orders were necessary to protect their right to a fair trial, (2) the state waived its rights, under the collateral-bar doctrine, to challenge the enforceability of the Superior Court’s orders, (3) the Attorney General was not exempt from Rule 3.6, which struck an appropriate balance between his First Amendment rights and the defendants’ right to a fair trial, (4) the trial justice’s findings of contempt were neither clearly wrong nor arbitrary, (5) the monetary sanctions imposed were within the broad discretion of the trial court, and (6) the Attorney General’s comments were not “core political speech” protected by the First Amendment.

The Supreme Court reversed both findings of contempt and vacated the imposition of sanctions.  The Court held that irrespective of whether the November order met constitutional muster and was enforceable, the Attorney General’s “spin and twist” comment did not violate the order.  Specifically, the Court held that the record did not support the conclusion that the Attorney General knew or reasonably should have known that his “spin and twist” comment would create a substantial likelihood of material prejudice given the brevity of the statement and the trial justice’s instruction to the jury not to read any media coverage of the trial.  The Court also reversed the second finding of contempt after holding that the December order was not enforceable against the Attorney General because paragraph 1.1 was not sufficiently clear to be the basis of a contempt finding.  Finally, the Court held that the Attorney General’s official website posting did not violate any directive from the trial court because the posting did not qualify as a “discussion” with the jury.

Track V of the Supreme Court’s opinion addressed the propriety of the Attorney General’s entering into a contingency fee agreement with outside counsel to prosecute the public nuisance action, which issue was before the Court pursuant to its issuance of a writ of certiorari.

After first summarizing some basic principles relative to the special nature of the constitutional office of Attorney General in Rhode Island and noting the duty of attorneys general to represent the public interest and to “seek justice,” the Supreme Court went on to address the propriety of contingent fee agreements between the Attorney General and outside counsel. 

The Court concluded that the Attorney General is not precluded from engaging outside counsel pursuant to a contingent fee agreement in order to assist in certain civil litigation, so long as the Office of Attorney General retains absolute and total control over all critical decision-making in any case in which such agreements have been entered into.  The Court emphasized that the Attorney General’s decision-making authority must not be delegated to outside counsel; rather, it is outside counsel who at all times must serve in a subordinate role.  The Court set forth several conditions that should be expressly set forth in any contingent fee agreement between that office and outside counsel.  The Court explicitly declared that such agreements were not to be employed in the criminal context, noting that same was explicitly barred by the Rhode Island Supreme Court Rules of Professional Conduct. 

The Court then addressed the defendants’ contention that contingent fee agreements between the Attorney General and outside counsel are violative of Rhode Island law because (in the defendants’ view) such agreements are tantamount to an unlawful appropriation of state funds.  In the opinion of the Court, although the state would effectively hold the legal title to any damages that might be awarded to the state in a civil trial, outside counsel retained on a contingent fee basis would have an equitable right to the portion of such damages that represents their fee.  Accordingly, the Court concluded that contingent fee agreements between the Attorney General and outside counsel would not be violative of the statutory provisions that require that all money due to or belonging to the state be paid to the General Treasurer.

Finally, the Court set forth its view that, in cases where the Attorney General has hired outside counsel on a contingent fee basis, the contingent fee payable to outside counsel should be subject to oversight and scrutiny by the courts before payment is made to said counsel and before any net amount would be payable to the state. 

State of RI v. Jacques Gautier, No. 06-58 (June 27, 2008)

The defendant, Jacques Gautier, appealed from his convictions of second-degree murder and breaking and entering for having entered his estranged wife’s apartment and killing her seventeen-year-old boyfriend, Jeffrey Indellicati. The defendant argued that the trial justice erred: (1) by allowing his wife’s prior recorded testimony from the defendant’s probation-violation hearing to be read into evidence; (2) by excluding an affidavit made by the defendant’s wife in which she refuted the testimony she gave at the defendant’s probation-violation hearing; (3) by allowing evidence that the defendant had recently assaulted his wife and that he used cocaine shortly after Indellicati was killed; (4) by allowing the state to bolster the credibility of its own witness; (5) by failing to give the jury an instruction on voluntary manslaughter; (6) by commenting on the evidence while giving the jury its instruction on burglary; and (7) by denying the defendant’s motion to pass after a state’s witness misspoke.

The Supreme Court affirmed Mr. Gautier’s convictions.  The Court held that his wife’s previous recorded testimony was admitted properly under Rule 804(b)(1) of the Rhode Island Rules of Evidence because there was a substantial identity of issues between the probation-violation hearing and the criminal trial, and because the defendant had had an adequate opportunity to cross-examine his wife at the previous proceeding.  The Court further held that the defendant had failed to preserve a constitutional challenge to the admission of his wife’s previous testimony.  The Court also held that the exclusion of the affidavit that the defendant’s wife made was a sustainable exercise of the trial justice’s discretion in evidentiary matters.  The Supreme Court also held that the trial justice did not abuse his discretion by allowing evidence of the domestic assault because it was relevant to establish a motive and to the issue of the defendant’s identity, and the defendant did not demonstrate that it was unfairly prejudicial.  The defendant’s objection to the evidence of cocaine use was not preserved, however, because at trial he asked for and received an appropriate cautionary instruction.

The Supreme Court held that the defendant did not sufficiently object to the state’s line of questioning of its own witness to preserve on appeal the objection of witness bolstering. The Court also held that the defendant did not argue at trial that the killing was committed in the “heat of passion” as a result of the defendant’s catching his wife in an adulterous affair, thus waiving the argument that the trial justice erred by not giving a voluntary-manslaughter instruction. The Supreme Court perceived no error in the trial justice’s jury instructions and held that the trial justice appropriately handled a misstatement that the chief clerk of the District Court made.  Thus, the trial justice did not commit reversible error by refusing to pass the case.  Other arguments the defendant made were determined not to have been sufficiently raised at trial, and, therefore, were waived.

Theodore H. Such, Jr., et al. v. State of Rhode Island et al., No. 2007-21 (June 26, 2007)

 The State of Rhode Island appealed from a declaratory judgment entered in favor of the plaintiffs, Theodore H. Such, Jr., Eric Ahlborg, and Robert MacDonald. Two bills were signed by the Governor two days apart and each made changes to the same statutory section that authorized penalties against persons who refuse to submit to chemical tests when law enforcement officers have reasonable grounds to suspect they have been operating a motor vehicle under the influence of liquor or drugs. The plaintiffs contended, and the Superior Court agreed, that the second bill—signed by the Governor two days after the first and which reproduced the statutory language as it existed before enactment of the first bill in addition to adding a new subsection—repealed the amendatory language in the first bill.
Describing its role in construing statutes as determining the Legislature’s intent, the Court emphasized that statutes relating to the same subject matter should be considered together unless irreconcilably repugnant. The Court explained that two or more bills enacted in the same legislative session on the same subject are presumed to have been actuated by the same policy and intended to have effect together. Applying these principles, the Court concluded that the General Assembly did not intend the second bill to repeal the first bill; instead, the General Assembly clearly intended for the amendatory language in both bills to become operative in the existing statute. Accordingly, the Supreme Court reversed the judgment of the Superior Court.

Francisco Sosa v. State of Rhode Island, No. 07-177 (June 23, 2008)

The applicant, Francisco Sosa (the applicant or Sosa), appealed from the Superior Court’s denial of his application for postconviction relief.  The underlying facts of this case were set forth in State v. Sosa, 839 A.2d 519 (R.I. 2003), in which the Court affirmed the applicant’s conviction for first-degree murder.  The trial justice imposed a mandatory sentence of life imprisonment and a ten-year concurrent sentence for possession of a firearm without a license.  

The applicant sought postconviction relief, alleging that the mandatory life sentence that was imposed under G.L. 1956 § 11-23-2 was part of a “faulty sentencing hearing” that violated his constitutional rights to due process.  The trial justice granted the State of Rhode Island’s motion to dismiss and the Supreme Court affirmed. 

The decision in this case was controlled by the Court’s holding in State v. Monteiro, 924 A.2d 784, 793 (R.I. 2007), in which the Court rejected the contention that the Legislature, by enacting the sentencing scheme, “usurped the judicial power by depriving the trial justice of his or her sentencing discretion.”  The Court consistently has declared that “it is the prerogative of the General Assembly to define criminal offenses and set forth the sentences for those crimes and that when it does so, the Legislature is not intruding upon the judicial function.”  Id. 

For the reasons set forth in this opinion, the judgment of the Superior Court was affirmed.

State v. Tajendar Patel, No. 03-341 (June 20, 2008)

The defendant, Tajendra Patel, was convicted by a jury for the murder of his former brother-in-law, Sanjeev Patel, for murder, in violation of G.L. 1956 § 11-23-1, conspiracy to commit murder, in violation of G.L. 1956 § 11-1-6, and discharging a firearm while committing a crime of violence, with death resulting, in violation of G.L. 1956 § 11-47-3.2.  He timely appealed his convictions to the Supreme Court. 

On January 1, 2002, the defendant drove Roger Graham to the Founder’s Brook Motel in Portsmouth.  The defendant admitted that he drove Graham to show him where the defendant’s estranged wife, from whom he was separated, and young daughter were living.  As the defendant waited in the car, Graham walked into the motel office and shot Sanjeev Patel multiple times, while Sanjeev’s eight-year-old son watched.  Graham returned to the car and the defendant then dropped him off somewhere along the highway.     

On appeal, the defendant argued that the trial justice erred when she (1) admitted an in-court identification because the identification procedure was unnecessarily suggestive and because the identification lacked independent reliability; (2) admitted a 9-1-1 call that was irrelevant and unfairly prejudicial; and (3) denied a motion to pass the case after two state witnesses characterized an envelope found in the defendant’s car as a “map” and “diagram” of the Founder’s Brook Motel.  The state argued that the hearing justice erred when he concluded that the use of a showup procedure was unnecessarily suggestive; however, the trial justice was not clearly wrong when she admitted the in-court identification and the 9-1-1 call.  The state also cross-appealed the trial justice’s ruling that excluded certain statements of witnesses who came from New York with Graham, arguing that the exclusion was in error. 

The Supreme Court first considered the hearing justice’s ruling that excluded the out-of-court identification of the witness.  The Court reaffirmed its prior case law that said that the police’s use of a single photograph for the purposes of identifying a suspect was not an unnecessarily suggestive procedure per se.  The Court then affirmed the trial justice’s admission of the in-court identification.  The Court held that the trial justice did not err when she admitted the in-court identification because, under the totality of the circumstances, the identification was independently reliable.  The Supreme Court also affirmed the trial justice’s admission of the 9-1-1 tape, holding that the probative value of the tape was not substantially outweighed by the danger of unfair prejudice.  Finally, the Court held that the trial justice was not clearly erroneous when she gave a curative instruction instead of declaring a mistrial, after a state witness characterized the envelope as a “diagram” of the motel, in contravention to her prior ruling.

Michael B. Chalk v. State of Rhode Island, No. 06-103

The applicant, Michael B. Chalk (applicant), appealed the denial of his application for postconviction relief.  On appeal, the applicant alleged that his trial counsel committed several errors, including: (1) failing to raise on appeal the issue of the trial justice’s decision to close the courtroom; (2) failing to object to the state’s amended indictment; (3) failing to subpoena certain documents during discovery; and (4) limiting his communication with the applicant over the course of a weekend during trial. 

The Rhode Island Supreme Court concluded that none of the errors alleged on appeal amounted to ineffective assistance of counsel.  First, the Court concluded that, in light of the Court’s jurisprudence at the time of the original appeal, it was reasonable for the applicant’s counsel to conclude that the trial justice’s decision to close the courtroom was not a strong issue for appeal.  Second, the Court concluded that the applicant waived any objection to the amended indictment and his counsel made a sound tactical decision in not objecting.  Third, the Court concluded that no prejudice resulted from late disclosure of certain documents at trial.  Finally, the Court concluded that no prejudice resulted from trial counsel’s decision not to communicate with the applicant for a single weekend concerning his ongoing trial testimony.

In light of the foregoing, the Rhode Island Supreme Court affirmed the hearing justice’s denial of the applicant’s application for postconviction relief.

State v. Ronald Barkmeyer, No. 06-279 (June 20, 2008)

The defendant, Ronald Barkmeyer (Barkmeyer or the defendant), was arrested and charged with one count of first-degree child molestation sexual assault, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, on his eight-year-old stepdaughter (Jane).  The mother of the child, Jennifer Barkmeyer (Jennifer) notified her father, William Wilson (William), and her mother, Barbara, and they arrived from California and stayed in the family home.  Both William and Barbara assisted Jennifer and Jane throughout their ordeal, including cleaning the home and packing up defendant’s belongings to move them to the Marine barracks.

William gave Det. William Swierk (Det. Swierk), of the Middletown Police Department, property that he found in the defendant’s vehicle and thereafter invited Det. Swierk into the home to retrieve a rope that he found while cleaning the master bedroom closet.  The defendant’s motion to suppress these items was denied.

A jury subsequently convicted the defendant of first-degree child molestation sexual assault.  The defendant was sentenced to fifty years at the Adult Correctional Institutions, with thirty to serve and the rest suspended, with probation.  The defendant timely appealed to this Court, arguing that the trial justice erred when he: (1) denied the defendant’s motion to suppress the rope, (2) ordered the courtroom partially closed during Jane’s testimony, (3) allowed a child-protective investigator to testify that Jane identified the defendant as her assailant, and (4) denied the defendant’s motion to pass the case based on allegedly prejudicial comments made during the state’s closing argument. 

The Supreme Court determined that the rope was discovered during a private search and then lawfully seized with the consent of the homeowner.  The Court also was convinced that, were this otherwise, the inevitable-discovery exception to the exclusionary rule would be an insurmountable barrier to exclusion of the evidence. 

Further, the Court noted that the state’s motion for partial closure of the courtroom under G.L. 1956 § 12-28-8 and G.L. 1956 § 11-37-13.2 was inappropriate.  However, after a careful review of the record in this case, the Court concluded that the defendant was not denied his Sixth Amendment right to a public trial because there was no showing that anyone was excluded from his trial.  

Additionally, the Supreme Court was convinced that the trial justice did not abuse his discretion in admitting the child-protective investigator’s testimony as a prior consistent statement.  Finally, the Court determined that although the prosecution’s characterization of the defendant as a predator was inappropriate, any prejudice to the defendant that would have flowed from the prosecution’s inappropriate remarks was cured by the comprehensive cautionary instruction by the trial justice, which was timely, appropriate, and a model of clarity.  

For the reasons set forth in this opinion, the judgment of the Superior Court is affirmed.  The papers in this case may be returned to the Superior Court.

Estate of Louis J. Giuliano, Sr. et al v. Louis J. Giuliano, Jr., No. 07-100 (June 20, 2008)

This case centered around the issue of whether or not the will of Louis J. Giuliano, Sr., should be admitted to probate.  The defendant, Louis J. Giuliano, Jr., whose late father was allegedly the testator in the will at issue, appealed from the Superior Court’s grant of the plaintiffs’ motion for summary judgment and its ruling that the will should be admitted to probate.  (The plaintiffs were the Estate of the deceased Mr. Giuliano and the executrix.)  The defendant contended that this Court should reverse the summary judgment granted by the hearing justice because: (1) there was a genuine issue of fact as to whether or not the will in question was properly executed; and (2) there was a genuine issue of fact as to whether or not the signature on the will was authentic.

The Supreme Court agreed with the defendant that summary judgment was improperly granted in this case.  Noting that summary judgment is “a drastic remedy,” the Court first stated that the self-executing affidavit to which the hearing justice gave presumptive effect only functions in that manner in the situation where no objection is made to admitting the will to probate; because such an objection was made in this case, the hearing justice should not have given presumptive weight to the self-executing affidavit.  Secondly, the Court concluded that, although the trier of fact might ultimately give short shrift to the defendant’s challenge to the authenticity of the signature on the will, it is not proper to evaluate the weight of the evidence at the summary judgment stage. 

Accordingly, the Supreme Court reversed the grant of summary judgment.

Christopher Thornton v. State of Rhode island, No. 06-221 (June 13, 2008)

The applicant, Christopher Thornton, appealed to this Court from the denial of his application for postconviction relief.  On appeal, the applicant contended that the hearing justice did not follow the procedures outlined by this Court in Shatney v. State, 755 A.2d 130 (R.I. 2000).

The Court concluded that the hearing justice essentially complied with the procedures set forth in Shatney.  First, in a commendable effort to ensure that counsel addressed each of the applicant’s contentions, the trial justice directed counsel to address specific issues and conducted three separate hearings with both the applicant and counsel present.  Secondly, the applicant was permitted to submit to the court two pro se memoranda to supplement his application for postconviction relief; both of those memoranda were referred to at oral argument and then addressed by the hearing justice when he announced his decision.  Thirdly, the applicant was given an opportunity to speak on his own behalf at all three hearings, and he was permitted to dispute the arguments made in each of the no-merit memoranda, both at oral argument and in his supplemental filings.  In other words, the applicant was able to fully argue his case for postconviction relief, and he was not denied the procedural protections of Shatney. 

Accordingly, the Court held that the hearing justice properly denied the applicant’s postconviction relief application and that he did not violate the procedures outlined in Shatney.  For those reasons, the applicant’s appeal was denied and dismissed.

State v. Charles Pona et al No. 2004-234-C.A. (June 12, 2008)

Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.

The defendant, Charles “Manny” Pona, appeals his conviction for the murder of fifteen-year-old Jennifer Rivera. Dennard Walker, the half brother of the defendant, shot Jennifer multiple times in the back of the head to prevent her from testifying against Pona in another murder trial. Pona was convicted of conspiracy to murder, murder, carrying a firearm without a license, committing a crime of violence while carrying a firearm, and obstruction of justice. The Supreme Court reversed the judgment of conviction, holding that an amalgam of errors at Pona’s trial, relating to the admission of evidence that he was involved in the other murder, deprived the defendant of the right to a fair trial.

    The Court held that the admission of testimony that Pona’s pager and fingerprints were found at the scene of the Hector Feliciano murder was evidence of “other crimes” that were prohibited by Rule 404 of the Rhode Island Rules of Evidence. The state argued that it went to show Pona’s motive to kill Jennifer Rivera, who was the state’s prime witness in the Feliciano murder. The Court disagreed that the pager and fingerprint evidence were probative to demonstrate Pona’s motive to kill, and instead concluded that they were highly prejudicial propensity evidence. The Court also held that the un-redacted admission of Jennifer’s bail-testimony hearing tape, in which she identified the defendant as the man running from the scene of the Feliciano murder, warranted reversal. The Court held that playing the young victim’s voice for hours (characterized by the state in closing arguments as her “voice from the grave”) was both unfairly prejudicial and also that it contained inadmissible statements that referred to Pona as a murderer.
The judgments of conviction were vacated and the record was returned to the Superior Court for a new trial.
 

Anton Mandros et al v. Glenn Prescod, M.D., et al, No. 07-0005 (June 3, 2008)

Anton Mandros (plaintiff) appealed from a Superior Court judgment on a jury verdict.  The jury had determined that the plaintiff failed to prove by a preponderance of the evidence that the defendant, Glenn Prescod, M.D. (Dr. Prescod), was negligent in providing medical services to the plaintiff.  The plaintiff contended that the trial justice erred in failing to instruct the jury on the loss-of-chance doctrine, an expanded version of proximate cause.

          The Supreme Court determined that the issue of whether the trial justice should have instructed the jury on the loss-of-chance doctrine was moot.  The jury did not find that Dr. Prescod had deviated from the appropriate standard of care.  Accordingly, the Court concluded that because the loss-of-chance doctrine affects only the causation part of the tort analysis, and because the jury never had to reach the question of causation, the trial justice’s failure to instruct on the loss-of-chance doctrine was moot. 

State v. Jose DeJesus, No. 06-193 (May 29, 2008)

The defendant, Jose DeJesus, appealed the judgments of conviction for murder, first-degree robbery, discharging a firearm during the commission of a crime of violence with death resulting, carrying a pistol without a license, and possessing a firearm after a previous conviction for a crime of violence.  On appeal, DeJesus argued that (1) the trial justice erred in admitting the defendant’s recorded statements to an undercover informant in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and article 1, section 13, of the Rhode Island Constitution; (2) the admission of the informant’s recorded statements to DeJesus violated the defendant’s right to confrontation, under the Sixth and Fourteenth Amendments to the United States Constitution, and article 1, section 10, of the Rhode Island Constitution; (3) a 9-1-1 call should not have been played to the jury because it was irrelevant and unfairly prejudicial; and (4) G.L. 1956 § 11-47-3.2(b)(3) and (c), which require a mandatory consecutive life sentence on the charge of discharging a weapon during the commission of a crime of violence resulting in death, violate the Equal Protection Clause, the Double Jeopardy Clause, and constitute cruel and unusual punishment.

The Supreme Court affirmed the convictions and the sentence.  The Court held that DeJesus’ recorded statements properly were admitted into evidence because the trial justice did not abuse his discretion in ruling that the defendant did not request legal assistance during an interrogation by the investigating detective.  The Court also held that because the informant’s recorded questions were not offered into evidence for the truth of the matter asserted, but only to provide context for the defendant’s answers, they did not implicate the Confrontation Clause. 

The Court also held that the 9-1-1 call did not warrant exclusion under Rule 403 of the Rhode Island Rules of Evidence because its probative value, which went to the issue of identifying the robber, was not substantially outweighed by unfair prejudice against the defendant.  The Court then reaffirmed its prior caselaw upholding the constitutionality of § 11-47-3.2 and also held that the imposition of a consecutive sentence under to § 11-47-3.2(b)(3) and (c) did not violate the Equal Protection Clause because the statute was rationally related to the legitimate purpose of deterring the use of firearms.

Imperial Casualty and Indemnity Company v. Amitie Bellini, No. 07-140 (May 29, 2008)

The appellants, two individuals and a corporation, appealed from the entry of summary judgment in favor of Imperial Casualty and Indemnity Company (Imperial).  The appellants argued that the hearing justice erred in ruling that Mr. DeSantis, a successful tort plaintiff, could not pursue any bad faith claims against the tortfeasor’s insurer, Imperial.  The appellants also contended that postjudgment interest should have been calculated as compound, rather than simple, interest.

The Supreme Court concluded that the hearing justice did not err in her ruling that Mr. DeSantis could not pursue the tortfeasor’s bad faith claims against Imperial (which claims had been assigned to him), because the genuinely debatable controversy that existed with respect to the issue of coverage, which sparked many years of litigation, indicated that the conduct of the insurance company did not rise to the level of bad faith.

The Court also concluded that the hearing justice’s denial of the appellants’ request for compound postjudgment interest was entirely appropriate.  Looking to the virtually identical statutory language governing prejudgment interest, combined with the Court’s treatment of prejudgment interest as constituting simple interest only, the Court concluded that compound interest should not apply to the judgment that Mr. DeSantis had obtained.

Accordingly, the Supreme Court affirmed the judgment of the Superior Cour

Stephen Mattatal v. State of Rhode Island, No. 05-318 (May 29, 2008)

The applicant, Stephen Mattatall, appealed to the Supreme Court from the denial of his second application for postconviction relief.  On appeal, the applicant asserted three claims of error.

First, the applicant contended that the hearing justice should have recused himself because (in the applicant’s view) his impartiality was questionable, given the fact that, when sentencing the applicant in the underlying murder case, the hearing justice had made a number of unfavorable comments with respect to the applicant’s character and credibility.  The Supreme Court concluded that, rather than making biased or prejudicial statements about the applicant, the hearing justice, in accordance with what this Court has encouraged judicial officers to do, was simply articulating his reasons for enhancing the applicant’s sentence pursuant to the habitual offender statute.  Accordingly, the Court held that the hearing justice’s decision not to recuse himself was proper. 

As to the applicant’s second appellate argument that only the trial justice who accepted his Alford plea in 1979 should consider his second application for postconviction relief, the Court concluded that the application could not be assigned to that judicial officer as he was no longer a member of the Superior Court and that the application was properly assigned to another justice of that court.

The Court then addressed the applicant’s final claim of error—that his 1979 Alford plea was not made knowingly, intelligently, and voluntarily and that the hearing justice in the instant case erred in determining that the applicant’s claim was precluded by the doctrine of res judicata.  The Court determined that the applicant claims were barred because he could have, and indeed should have, raised his arguments with respect to his Alford plea in his first application for postconviction relief.

For those reasons, the judgment of the Superior Court was affirmed.

National Refrigeration Inc. et al v. The Travelers Indemnity Company of America, et al, No. 07-252 (May 29, 2008)

In this insurance contract case, the plaintiff, National Refrigeration, Inc. (plaintiff), appealed the Superior Court’s grant of summary judgment in favor of the defendant, The Travelers Indemnity Company of America (defendant).  The Superior Court granted summary judgment on the grounds that the plaintiff initiated its petition for arbitration years after the time expressly provided for in the contract between the two parties. 

The Supreme Court affirmed the judgment of the Superior Court and held that the plaintiff sat on its right to commence such an action until well beyond the two-year period provided for in the contract.  As such, the plaintiff’s belated attempt to seek arbitration of the damages payable under the policy was barred by the plain language of the contract, and the defendant’s actions in no way tolled the operation of the policy’s limitation provision.

 Simon Richardson v. Rhode Island Department of Education et al, No. 07-155 (May 28, 2008)

The plaintiff, Simon Richardson (plaintiff), appealed pro se from an entry of summary judgment in favor of the defendants, Rhode Island Department of Elementary and Secondary Education (RIDE); Kathleen Murray, a RIDE hearing officer, (hearing officer); and Peter McWalters, the RIDE Commissioner.   

The trial justice had granted the defendants’ motion for summary judgment on two grounds.  First, the trial justice found that the hearing officer enjoyed quasi-judicial immunity from suit.  Second, the trial justice found that the plaintiff did not exhaust his administrative remedies.  The Supreme Court affirmed the judgment of the Superior Court, concluding that the long-standing doctrine of quasi-judicial immunity applies to RIDE hearing officers and that the plaintiff did not exhaust his administrative remedies as required. 

State of Rhode Island v. Brian Faria, No. 06-278 (May 23, 2008)

The state appealed from a District Court decision granting the defendant’s motion to destroy and seal records of his arrest.  General Laws 1956 §§ 12-1-12 and 12-1-12.1 allow for the destruction of certain police records and the sealing of court records for persons not previously convicted of a felony.  The District Court concluded that the classification between felons and non-felons did not have a rational basis because it did not serve a legitimate state interest.  The Rhode Island Supreme Court granted certiorari to consider whether the distinction in §§ 12-1-12 and 12-1-12.1 between felons and non-felons violated equal protection. 

On appeal, the state argued that under rational-basis review, the distinction between felons and non-felons might help identify patterns of criminal activity and aid in the identification and apprehension of criminals.  The Supreme Court agreed and reversed the decision of the District Court.  The Court said that the proper inquiry to determine whether the statutory classification violates the Equal Protection Clause is whether the General Assembly rationally could conclude that the classification serves a legitimate state interest.  Thus, to overcome the presumption of validity, a party seeking to attack a statutory classification has the burden to negate every conceivable basis that might support it.  The Court concluded that the state had a legitimate interest in effective law enforcement rationally related to the statutory distinction between felons and non-felons. 

State of Rhode Island v. Joseph Maloney, No. 06-82 (May 23, 2008)

Liberty Mutual Insurance Company v. Linda Kaya, No. 07-254 (May 23, 2008)

This appeal arose out of a dispute concerning the uninsured/underinsured-motorist (UM) coverage of an automobile insurance policy.  The defendant, Linda Kaya, appealed from the Superior Court’s grant of summary judgment in favor of the plaintiff, Liberty Mutual Insurance Company, in an action for declaratory judgment.  The Supreme Court affirmed the judgment of the Superior Court.

After entering into arbitration with the tortfeasors for damages suffered as a result of a car accident, Ms. Kaya attempted to enter into an additional arbitration with Liberty Mutual, to recover benefits under her UM insurance policy.  The Supreme Court held that Ms. Kaya is not entitled to seek recovery under the UM coverage of her policy with Liberty Mutual.  The Supreme Court held that the language of both the uninsured-motorist statute, G.L. 1956 § 27‑7‑2.1, and Ms. Kaya’s UM insurance policy precluded Ms. Kaya from seeking damages from Liberty Mutual because the “final and binding arbitration” with the tortfeasors established conclusively the amount of damages Ms. Kaya suffered, and she received a full recovery from the tortfeasor for those damages.

Michelle Ann Thibaudeau v. Andrew P. Thibaudeau, No. 07-107 (May 21, 2008)

The defendant, Andrew P. Thibaudeau, appealed from a Family Court judgment in a “protection from abuse” action.  He is aggrieved by the fact that the Family Court has prohibited him from “contacting, assaulting, molesting, or otherwise interfering with” the plaintiff, Michelle Ann Thibaudeau (his estranged wife). 

On appeal, the defendant argued that the hearing justice impermissibly relied on a report that was not in evidence in this case and that such reliance constituted reversible error.  The defendant also argued that there was insufficient evidence for the hearing justice to have determined that a restraining order was appropriate.

The Supreme Court affirmed the judgment of the Family Court.  The Court first stated that, although the Family Court justice’s reference to a report from a guardian ad litem that was not in evidence in this case was improper, that justice had relied upon sufficient evidence independent of that report to justify his decision to issue the restraining order. 

The Court then determined that the defendant’s argument that there was insufficient evidence to support the issuance of the restraining order was without merit.

For those reasons, the Court affirmed the judgment of the Family Court.

Hugh Fisher v. Richard Applebaum, Esq., as executor of the estate of Ester A. Aiello, No. 05-215 (May 21, 2008)

In this case, the defendant, Richard Applebaum, Esq., executor of the estate of Esther A. Aiello (the defendant), appeals from a Superior Court judgment awarding specific performance of a contract for the sale of land to the plaintiff, Hugh Fisher (Fisher or the plaintiff).   

The parties entered into a purchase and sales agreement (PSA), in which the defendant agreed to convey marketable title once the plaintiff obtained the requisite approvals for a building permit.  Although there were tax title problems with the property, Applebaum declared his intention to honor the contract and work to resolve the title defects.

Throughout this period, Fisher was “ready, willing and able to purchase the property,” and was frustrated by the delay.  The plaintiff finally filed suit, alleging breach of contract arising from the PSA and sought specific performance of the PSA and damages amounting to interest, fees, and costs.

The trial justice found that “the spectre of a defective title posed no impediment to Mr. Fisher’s readiness, indeed eagerness, to close,” and that Fisher acted diligently to comply with the terms of the PSA.  The trial justice concluded that specific performance was a fair and equitable remedy.             

After careful review of the record, the Court was satisfied that the trial justice made detailed findings about the credibility of the witnesses and evaluated the weight of the evidence.  Moreover, although the parties did not execute an agreement extending the closing date, the facts established that the parties agreed to postpone the closing date until the provisions of the Marketable Record Title Act barred any claim to one of the lots. 

The Court held that the evidence in this case established that the defendant was attempting to resolve the title problems and that the parties agreed about the course of conduct.  Indeed, both sides continued to work towards a closing, fully aware of the issues that needed to be resolved.

For these reasons, the Court was of the opinion that specific performance was an appropriate remedy in this case and that the judgment of the Superior Court should be affirmed.

State v. Daniel Grant, 05-163 (May 13, 2008)

The defendant, Daniel Grant, was found guilty of one count of aiding and abetting the crime of possession of marijuana with intent to deliver.  The defendant appealed to the Supreme Court, alleging: (1) that the trial justice erred in denying his motion for a judgment of acquittal; (2) that his motion to pass the case should have been granted; and (3) that the trial justice erred in denying his motion for a new trial.

The Court observed that testimony concerning the defendant’s warnings to his friend (a narcotics dealer) to “lay low,” as well as the defendant’s having checked to see if undercover police cars were in his friend’s neighborhood and having checked the serial number of a firearm that his friend possessed, was sufficient to allow the Court to conclude that the trial justice did not err in denying the defendant’s motion for a judgment of acquittal.

Discussing two discovery violations that the trial justice had remedied by allowing the defendant to reopen cross-examination, the Court concluded that the trial justice’s denial of the defendant’s motion to pass the case was appropriate.  Accordingly, it affirmed that decision.

Finally, with respect to the defendant’s motion for a new trial, the Court concluded that the trial justice did not err in ruling that the evidence supported the defendant’s conviction for aiding and abetting, and the Court affirmed her denial of the defendant’s motion for a new trial. 

For the aforementioned reasons, the Supreme Court affirmed the judgment of the Superior Court.

Richard Tyre and Lisa Tyre, as natural parents and heirs of Shelley Arden Tyre v. David Swain, individually and as executor of the estate of Shelley Arden Tyre, No. 06-183 (May 13, 2008)

In this wrongful death action, the defendant, David Swain (the defendant), appealed from a Superior Court judgment that (1) declared that the defendant was a slayer, under G.L. 1956 § 33-1.1-1(3), and (2) awarded the plaintiffs, Richard and Lisa Tyre (collectively the plaintiffs), in their capacity as natural parents and heirs of Shelley Arden Tyre, compensatory damages with interest totaling $2,815,085.46 and punitive damages of $2 million for their daughter’s death.  In his appeal, the defendant argued that the Superior Court did not have jurisdiction to declare him a slayer and that jurisdiction for such an action was more appropriately in the probate court.  He also contended that the trial justice’s refusal to grant him a continuance to obtain new counsel was an error.  In addition, the defendant took issue with various aspects of the judgment itself, including the award of punitive damages, the trial justice’s failure to instruct the jury to render separate judgments for wrongful death and survival damages, and the trial justice’s sua sponte application of the compensatory damages award to the plaintiffs’ claim under G.L. 1956 § 9-1-2.

The Supreme Court affirmed the judgment of the Superior Court, holding that the Superior Court did have jurisdiction pursuant to the Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, and that the defendant failed to properly raise all other issues before the trial justice, thereby precluding review of those issues on appeal.

Deborah L. Kedy, Legal Representative for the Estate of Brian Scallion et al v. A.W. Chesterton Co. et al., consolidated with In re Asbestos Litigation, No. 05-332 and 05-319 (May 9, 2008)

On writ of certiorari, the Supreme Court considered the applicability of the doctrine of forum non conveniens in Rhode Island jurisprudence.  Under the doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case, and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff’s convenience, or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case on forum non conveniens grounds, even if jurisdiction and proper venue are established.

The issue arose out of thirty-nine cases filed in the Superior Court that alleged personal injury and wrongful death caused by workplace exposure to products containing asbestos.  The plaintiffs in the thirty-nine cases were Canadian residents, and their employment, exposure, injuries, and treatment occurred in Canada.  The several actions were filed against various corporations, all of which conduct business in Rhode Island.  None of the corporate defendants that remained parties to the cases, however, were either incorporated in Rhode Island or had their principal place of business in the state.   

Several defendants filed motions to dismiss the asbestos actions based on the doctrine of forum non conveniens, which the Superior Court denied.  After granting the defendants’ petitions for writ of certiorari, the Supreme Court quashed the orders of the Superior Court.  The Supreme Court concluded that the doctrine of forum non conveniens, although previously acknowledged formally in Rhode Island only in the context of child-custody cases, was part of the state’s jurisprudential landscape.  The Court reasoned that the doctrine was founded on considerations of fundamental fairness and sensible and effective judicial administration. The Court explained that the doctrine derived, in the absence of statutory authority, from the courts’ inherent judicial powers that are incontestably necessary to the effective performance of judicial functions.

The Supreme Court proceeded to set forth the standard for applying the doctrine of forum non conveniens in Rhode Island.  Assuming the existence of proper jurisdiction and venue, the Supreme Court held that the forum non conveniens inquiry consisted of a two-prong analysis.  First, the trial court must decide whether an alternative forum exists that is both adequate and available to resolve the disputed legal issues. Second, the court must determine the inconvenience of continuing in the plaintiff’s chosen forum by weighing private- and public-interest factors announced in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).  The Supreme Court explained that it was not possible to catalogue all the circumstances that may or may not lead to a forum non conveniens dismissal and that, because the doctrine requires flexibility, central emphasis should not be placed on any one private- or public-interest factor.  The Court determined that a trial court should consider both the private- and public-interest factors in ruling on a motion to dismiss on the grounds of forum non conveniens.  Further, the Supreme Court explained that a trial court’s decision to grant or deny a motion to dismiss on forum non conveniens grounds is reviewed under an abuse of discretion standard.

The Court concluded that the significant factors in the forum non conveniens inquiry weighed heavily in favor of dismissal of the thirty-nine cases under review.  To ensure the availability of an adequate alternative forum, the Supreme Court directed the Superior Court to enter in each case an order dismissing the plaintiff’s complaint upon the condition that the defendants agree to waive any statute of limitations defense in the alternative forum.           

State v. James W. Christodal, No. 07-45 (May 7, 2008)

The defendant, James W. Christodal, appealed to the Supreme Court from an adjudication of probation violation.  On appeal the defendant contended: (1) that the state did not present credible evidence of a violation and, therefore, the hearing justice acted arbitrarily in finding that the defendant had violated his probation and (2) that the hearing justice imposed an excessive sentence, having failed to consider the totality of the circumstances in fashioning that sentence.

The Court first determined that the finding of the hearing justice that the defendant violated the terms and conditions of his probation was amply supported by the testimony of the two witnesses at the probation violation hearing; the Court held that he did not err in making such a finding.

The Court then went on to address the defendant’s contention that his sentence was excessive.  The Court stated that hearing justices at probation violation hearings have wide latitude in determining the appropriate sentence and that, despite defendant’s arguments to the contrary, the record clearly indicated that the hearing justice did, in fact, take into account defendant’s mental health issues as well as the state’s sentencing recommendation.  The Court concluded that the resultant sentence reflected an appropriate weighing by the hearing justice of both the defendant’s mental health problems and his destructive and criminal behavior. 

For these reasons, the Court affirmed the judgment of the Superior Court. 

In re Richard A, 05-61 (May 1, 2008)

The respondent, Richard A. (respondent), a juvenile, appeals from an adjudication that he was delinquent for committing second-degree child molestation sexual assault on his nine-year-old cousin.  The respondent also appealed the trial justice’s determination that the Sexual Offender Registration and Community Notification Act, G.L. 1956 chapter 37.1 of title 11 (the Registration Act) was constitutional as applied to juveniles.

The Supreme Court noted that the trial justice’s determination that the victim was a credible witness was rationally supported by competent evidence.  Based upon a review of the record, the Court concluded that it was clear that the trial justice did not err in finding the respondent guilty of second-degree child molestation sexual assault.

In reviewing the respondent’s constitutional challenge, the Court acknowledged a trend toward the erosion of confidentiality in the juvenile-justice system.  Yet, even in spite of this trend, the Court decided that especially in view of the fact that both the registration and any information accompanying the registration are available only to law enforcement agencies and are not disseminated to the public at large, the Registration Act was not inconsistent with the prevailing view that juvenile proceedings generally should be confidential. 

Finally, the Court concluded that because the purpose of the Registration Act is not to punish the offending juvenile, but rather, to protect the safety and general welfare of the public, the juvenile proceeding was not tantamount to an adult criminal proceeding.  Accordingly, the registration requirement did not constitute criminal punishment and the respondent had no right to a jury trial.   

In re Natalya C, No. 06-230 (April 30, 2008)

Stephanie Calise (Stephanie) appealed from a Family Court decree terminating her parental rights to her daughter, Natalya, under G.L. 1956 § 15-7-7(a)(3) and (a)(2)(iii).  In September 2004, the Family Court had ordered the Department of Children, Youth and Families (DCYF) to remove Natalya from her mother’s care because of Stephanie’s substance abuse.  Stephanie’s DCYF social caseworker then developed a case plan to assist Stephanie in becoming drug free.  The case plan required Stephanie to participate in substance-abuse treatment, and obliged DCYF to help Stephanie find treatment programs and to obtain reports from her service providers to determine her progress in treatment.  

Although Stephanie initially sought treatment for her substance abuse at various facilities, she was not fully compliant with those programs and later failed to engage in any treatment.  As a result, DCYF filed on October 31, 2005, a petition to terminate parental rights (TPR).  At the subsequent TPR hearing, the trial justice admitted Stephanie’s medical records from her treatment facilities.  The records repeatedly referred to the fact that Stephanie suffered from depression, that the depression led to her lack of motivation to comply with substance-abuse treatment, and that the depression put her at a high risk for relapse.  Nevertheless, testimony at the hearing revealed that neither Stephanie’s original case plan nor a subsequent one addressed her mental-health issues.

At the end of the TPR hearing, the Family Court terminated Stephanie’s parental rights under § 15-7-7(a)(3) and (a)(2)(iii).  The trial justice found that (1) Stephanie was an unfit mother because of her failure to adequately address her chronic substance abuse, (2) DCYF made reasonable efforts to reunite Stephanie and Natalya before it filed a TPR petition, and (3) Natalya’s best interests were served by terminating her mother’s parental rights because of Stephanie’s inability to properly care for her daughter. 

Stephanie appealed the Family Court decree, arguing that the trial justice erred when she found that DCYF met its burden of proving that it made reasonable efforts to achieve reunification between her and Natalya before it filed a TPR petition.  After its review, the Supreme Court held that DCYF did not prove, by clear and convincing evidence, that it had made reasonable efforts to achieve reunification.  Although the Court agreed with the trial justice that DCYF was not required to offer Stephanie drug counseling, when she sought such counseling herself, the Court believed it was wholly unreasonable for DCYF not to include any mental-health treatment in Stephanie’s case plans. 

The Court indicated that Stephanie’s DCYF social caseworkers knew, or should have known, that Stephanie’s depression prevented her compliance with substance-abuse treatment, and should have amended her case plans to address this issue.  In so holding, the Court placed responsibility on DCYF, not Stephanie, to create an effective treatment strategy for her substance abuse and depression.  The Court, therefore, vacated the Family Court decree terminating Stephanie’s parental rights.

State v. Grant Garvin, No., 07-135 (April 29, 2008)

The defendant, Grant Garvin (defendant), appealed to the Rhode Island Supreme Court from a judgment of conviction, after a jury-waived trial in the Superior Court, for operating a motor vehicle without a driver’s license, in violation of G.L. 1956 § 31-11-18.  The defendant asserted on appeal that the Superior Court lacked jurisdiction.  To support his assertion, the defendant argued that he is a “sovereign state citizen” in the State of Rhode Island and, as such, he has a fundamental right under the Ninth Amendment to the United States Constitution to travel without interference from the state.

The Rhode Island Supreme Court rejected the defendant’s jurisdictional challenge because, although passionately made, his arguments did not address the issue of jurisdiction.  In addition, the Court concluded that even if the defendant properly had challenged the criminal statute, his constitutional arguments failed because Rhode Island does not recognize a fundamental right to travel by automobile within the state.  The Court also concluded that § 31-11-18 is rationally related to the state’s legitimate interest in maintaining the safety of its public thoroughfares.  Thus, the defendant’s challenge was without merit.

William J. Murray v. Jennifer A. Bromley, No. 07-162 (April 23, 2008)

After a jury returned a verdict awarding him $0 in damages, the plaintiff, William J. Murray, moved for a new trial. The trial justice granted plaintiff’s motion, finding that the jury’s verdict shocked the conscience. The defendant, Jennifer A. Bromley, then appealed from an order granting the plaintiff’s motion for a new trial. 

The Supreme Court reviewed carefully the trial justice’s decision on the motion for a new trial, and it concluded that she adhered to the appropriate standards and properly articulated the basis for her findings.  The Court further held that the trial justice did not misconceive or overlook material evidence and she was not otherwise clearly wrong.  Accordingly, the Supreme Court affirmed the trial justice’s ruling on the motion for a new trial.  

Adelino Azevedo v. State of Rhode Island, No. 07-48 (April 23, 2008)

The applicant, Adelino Azevedo (Azevedo or the applicant), sought review by the Supreme Court of the denial of his application for postconviction relief.  In 1996, Azevedo was charged by indictment with one count of first-degree child molestation sexual assault and one count of second-degree child molestation sexual assault.  Azevedo contended that his application for postconviction relief should have been granted because he did not enter a knowing, voluntary, and intelligent plea.  After reviewing the record in this case, the Court concluded that the trial justice was satisfied that Azevedo fully understood the rights he was giving up and that the plea was voluntary. 

Azevedo also argued that the trial justice erred in accepting his plea because there was insufficient evidence of the applicant’s guilt to support an Alford plea.  The Supreme Court has never declared that overwhelming evidence of guilt is a necessary component to an Alford plea; the trial justice must establish that there is a factual basis for the plea and then the plea may be entered. 

The applicant next contended that his defense counsel provided ineffective assistance of counsel when he failed to properly investigate the case, prepare for trial, and advise the applicant of the immigration consequences of his plea.  After a review of the record, the Court was satisfied that Azevedo failed to sustain his burden of proving these allegations.

North Providence School Committee v. The North Providence Federation of Tachers, Local 920 American Federation Teachers, No. 07-156 (April 23, 2008)

The plaintiff, the North Providence School Committee (school committee), appealed to the Supreme Court from the Superior Court’s entry of judgment confirming an arbitration award in favor of the defendant, the North Providence Federation of Teachers, Local 920, American Federation of Teachers (union). 

The central issue in this case revolved around the school committee’s elimination of the composition period for English teachers at North Providence High School, which elimination the union contended was violative of the collective bargaining agreement between the parties.  Pursuant to that agreement, the union filed a grievance and it was ultimately submitted to arbitration.

In his Opinion and Award, the arbitrator first concluded that the issue of the composition period was a proper subject of negotiation between the school committee and the union and was therefore subject to the restrictions imposed by the collective bargaining agreement.  He then went on to conclude that the composition period amounted to a past practice and that its elimination violated Article XIII of the collective bargaining agreement. 

On appeal to this Court, the school committee argued that the arbitrator exceeded his powers when he found that a past practice existed between the parties and that the unilateral termination of same violated the collective bargaining agreement. 

The Supreme Court concluded that the highly limited nature of its scope of review where arbitral awards are concerned prevented it from disturbing the arbitrator’s determination.  The Court concluded that there was no sufficient showing that the arbitrator exceeded his powers or manifestly disregarded the law. 

Accordingly, stating that it was mindful of the presumption in favor of the validity of arbitration awards, the Supreme Court affirmed the judgment of the Superior Court.

State v. Francis D. McCarthy, No. 07-134 (April 21, 2008)

The defendant, Francis D. McCarthy, appealed from an adjudication of probation violation.  The magistrate based his determination that the defendant had violated his probation on three factors: (1) the defendant’s allegedly having engaged in “drive by” conduct with respect to the house of his sex-offender counselors, with whom he had experienced difficulties during counseling; (2) the discovery of female underwear in the defendant’s coat when his clothing was examined after he was arrested following the “drive by” incident; and (3) the defendant’s failure to remain current with sex-offender counseling, which was an enumerated requirement of his probation.  Defense counsel argued before the Supreme Court that these allegations did not amount to a failure by the defendant to have kept the peace and be of good behavior.

The Supreme Court concluded that the magistrate who heard the probation violation case did not act arbitrarily or capriciously when he determined that the defendant had violated the conditions of his probation.  The Supreme Court stated that the defendant’s failure with regard to attending sex-offender counseling was a patent violation of his probation, and it determined that it did not need to address the other two allegations that the magistrate addressed.

The judgment of the Superior Court was accordingly affirmed.

Arnold L. Shorrock v. Jonathan Scott, No. 07-232 (April 17, 2008)

In this case, the defendant, Jonathan Scott (the defendant or Scott), appeals pro se from a Superior Court judgment in favor of the plaintiff, Arnold L. Shorrock (the plaintiff or Shorrock), in an action for breach of contract.  Judgment was entered for the plaintiff on May 1, 2007, for $14,154, plus interest and costs. 

According to the testimony, on October 14, 2000, the plaintiff loaned $16,753 to the defendant, who promised to repay this loan as well as all his outstanding debts to the plaintiff by March 1, 2001.  The defendant failed to honor this promise. 

After a bench trial, the trial justice issued a written decision in which she made findings of fact and credibility determinations.  The trial justice found that the parties did not agree to an accord and satisfaction of the contract and that the defendant breached the contract by failing to repay the debt.  The trial justice awarded damages to Shorrock, but she declined to award him attorney’s fees. 

This Court affords great deference to the findings of fact of a trial justice sitting without a jury, and those findings will not be overturned unless the record discloses that the trial justice misconceived or overlooked material evidence or otherwise clearly was wrong.  Jalex Builders, Inc. v. Monaghan, 840 A.2d 1142, 1144 (R.I. 2004). 

The defendant contends that he was not afforded an opportunity to give direct testimony in his defense; however, we are of the opinion that the defendant did not try to present the evidence that he now wants this Court to consider, despite being provided with an opportunity to do so at trial.  Moreover, the defendant has failed to provide us with a complete transcript of the trial proceedings so we can evaluate the challenged rulings.    

Finally, Scott argues that judicial estoppel should prevent the trial justice’s decision from being upheld.  The defendant’s argument is unpersuasive.  The trial justice addressed the elements of the judicial estoppel concept and applied them diligently to the present case.  The trial justice clearly weighed the credibility of the witnesses and the evidence before her and found the plaintiff to be credible. 

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court, to which we return the papers in this case.

E. Howland Bowen v. A. Ralph Mollis, in his capacity as Secretary of State of the State of Rhode Island et al. No. 07-113 (April 17, 2008)       

In this case, the plaintiff, E. Howland Bowen (the plaintiff or Mr. Bowen), appeals pro se from a Superior Court judgment in favor of the defendants named in their official capacities, A. Ralph Mollis, the Secretary of State, the Rhode Island Board of Elections, Joseph A. Montalbano, the President of the Rhode Island Senate, and William J. Murphy, the Speaker of the Rhode Island House of Representatives (collectively defendants).

Mr. Bowen initially sought declaratory relief concerning the 2004 and 2006 elections, but later filed an amended petition, in which he sought a declaration that the 2008 general election is not a general election because the state’s general officers will not stand for election.

The trial justice found that the plaintiff had standing to raise this issue.  On the merits, however, the trial justice held that the 2008 election was a general election.  We affirm the judgment, but we do so because Mr. Bowen has no standing to assert these claims.  

We previously have declared that the Superior Court lacks jurisdiction to adjudicate claims under the Uniform Declaratory Judgments Act in the absence of an actual justiciable controversy.  McKenna v. Williams, 874 A.2d 217, 226 (R.I. 2005).  When called upon to decide the issue of standing, a trial justice must determine whether, if the allegations are proven, the plaintiff has sustained an injury and has alleged a personal stake in the outcome of the litigation before the party may assert the claims of the public.  Burns v. Sundlun, 617 A.2d 114, 116 (R.I. 1992).

We determine that Mr. Bowen’s putative interests are indistinguishable from the interests of the general public and that he has failed to allege a particularized injury or demonstrate that he has a stake in the outcome that distinguishes his claims from the claims of the public at large.  Although on rare occasions this Court has overlooked the question of standing so it can reach the merits of a controversy, we do so only in cases of substantial public interest.  Burns, 617 A.2d at 116.  We respectfully decline to do so today. 

Although the plaintiff has failed to overcome the insurmountable standing bar to relief in this case, we nevertheless are satisfied that the trial justice’s finding that a general election is one that is regularly scheduled on the same day —  “the first Tuesday next after the first Monday in November in even numbered years” — is correct. G.L. 1956 § 17-1-2(2). 

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court, but do so based on our conclusion that the plaintiff lacks the requisite standing to litigate this claim.  The papers in this case may be returned to the Superior Court.

Henry Asare v. State of Rhode Island, No. 07-143 (April 14, 2008)

The applicant, Henry Asare, appeals from a Superior Court judgment denying his application for postconviction relief.  On appeal, he argued that the court erred in denying his application because (1) the hearing justice accepted the applicant’s nolo contendere plea before giving the applicant the statutorily required warnings; (2) the hearing justice did not allow the applicant time to discuss the warnings with his attorney before entering his plea; and (3) the plea forms did not contain the warnings regarding potential immigration consequences of a plea that are mandated by G.L. 1956 § 12-12-22(b), as amended by P.L. 2000, ch. 501, § 1.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court determined the hearing justice did not commit reversible error in accepting Mr. Asare’s plea after giving only one part of the tripartite immigration warnings because the hearing justice rectified his mistake by readdressing Mr. Asare and reviewing with him all three of the immigration consequences, as required by statute.  Additionally, the Court did not find that the hearing justice’s failure to vacate the original plea of nolo contendere before explaining all three immigration consequences was fatal to his subsequent resentencing of applicant because the three immigration warnings were all part of the same colloquy. 

The Supreme Court also concluded that the plain language of § 12-12-22(b) did not require the hearing justice to give Mr. Asare additional time to consider his plea in light of the immigration warnings unless he asked the hearing justice for additional time.

Finally, the Supreme Court determined that Mr. Asare’s argument stating that the written plea form did not include the required immigration warnings was waived because Mr. Asare failed to raise the issue in the Superior Court.

State v. George Bouffard, No. 07-143 (April 14, 2008)

The defendant, George Bouffard, appealed to the Supreme Court from an adjudication of probation violation.  On appeal to the Supreme Court the defendant contended: (1) that the magistrate that presided over the adjudication did not have the authority to do so and (2) that there was insufficient evidence to support a finding that he violated his probation.

The Supreme Court first determined that the defendant did not properly preserve for review by the Supreme Court his constitutional contentions with respect to the authority of the magistrate because, in addition to not having raised the issue in the Superior Court, defendant failed to provide the statutorily required service upon the Attorney General. 

After reviewing the entire record, the Supreme Court concluded that the magistrate acted neither arbitrarily nor capriciously when he determined that the defendant violated the terms and conditions of his probation. 

For those reasons, the Supreme Court affirmed the judgment of the Superior Court. 

American Express Bank, FSB v. Cory Johnson, No. 07-222 (April 14, 2008)

The defendant, Cory Johnson, appealed from the Superior Court’s entry of summary judgment in favor of the plaintiff, American Express Bank, FSB, for $928,028.64, plus interest and costs.  On appeal, Mr. Johnson argued that the trial justice erred in granting American Express’s motion for summary judgment because his affidavit presented an issue of material fact that precluded the entry of summary judgment.  The Supreme Court affirmed the judgment of the Superior Court.

The Supreme Court held that the trial justice did not err in granting American Express’s motion because Mr. Johnson failed to present an issue of material fact precluding the entry of summary judgment.  Mr. Johnson’s affidavit did not specify the charges he was challenging, the reasons he was challenging them, and the amounts he was disputing.  The Court held that Mr. Johnson’s affidavit was insufficient to defeat American Express’s motion for summary judgment because it was a bald assertion that factual issues existed and, as a result, was insufficient to place Mr. Johnson beyond the reach of summary judgment. 

Maridel Allen, individually and on behalf of statutory Beneficiaries, Frank Edward Allen and John M. Allen, III v. South County Hospital et al, No. 06-6 (April 14, 2008)

The plaintiff, Maridel Allen, individually and on behalf of statutory beneficiaries, Frank Edward Allen and John M. Allen, III, appealed from a judgment dismissing her medical negligence and wrongful death action.  She also appealed from an order granting her motion to vacate the judgment subject to her compliance with various conditions.  On appeal, plaintiff argued the trial justice abused his discretion by failing to grant her motion for a continuance, by dismissing her complaint pursuant to Rule 41(b)(1) of the Superior Court Rules of Civil Procedure, and by imposing overly burdensome terms and conditions upon the grant of her motion to vacate judgment.  The defendants cross-appealed arguing that the trial justice abused his discretion by granting plaintiff’s motion to vacate judgment.

After the appeals were docketed, the Court remanded the case to Superior Court, stating that “an order granting a motion to vacate is interlocutory and not applicable.”  On remand, however, plaintiff did not satisfy a condition that she post a $60,000 corporate surety bond, and the motion to vacate was denied.  The case then was returned to the Supreme Court.

On appeal, the Court held that the trial justice erred by imposing the bond requirement because he had failed to consider the plaintiff’s ability to obtain such a bond.  Further, the Court vacated a condition requiring plaintiff to be responsible to defendants for “all reasonable costs and attorneys’ fees incurred with respect to trial preparation.”  Other conditions were affirmed.  The Court, therefore, reversed the denial of the motion to vacate.

The Court also denied the defendants’ cross-appeals, and it was evenly divided on the questions of whether the trial justice abused his discretion by not granting a continuance and then dismissing the complaint for failure to prosecute.  The judgment of dismissal under Rule 41(b)(1) thus was affirmed.

Pawtucket Transfer Operations, LLC v. City of Pawtucket, et al, No. 06-0272 (April 9, 2008)

The petitioner City of Pawtucket, filed a petition for certiorari for review of a Superior Court order, which reversed a decision by the City of Pawtucket Zoning Board of Review (zoning board or board) and determined that the construction and demolition (C&D) transfer station of the respondent Pawtucket Transfer Operations, LLC (PTO) was not an authorized use under § 410-12.5(I) of the Pawtucket Zoning Ordinance (zoning ordinance or ordinance). 

This matter began when the planning director of the Department of Planning and Redevelopment for the City of Pawtucket advised PTO that a C&D transfer station was not a permitted use under § 410-12.5(I) of the ordinance; PTO appealed to the zoning board.  The board agreed, finding that it was not unreasonable, capricious, or arbitrary for the planning director to conclude that, under § 410-12.5(I) of the ordinance, a refuse transfer station had to be wholly or in-part operated or managed by the city and had to manage refuse, not C&D debris.  PTO appealed the board’s decision to the Superior Court, which reversed the board.  The trial justice said there was no contextual or definitional support for the board’s interpretation and concluded that a C&D transfer station was an authorized use under the zoning ordinance.   The city then petitioned for certiorari, which the Supreme Court granted.

On appeal, the city argued that: (1) the trial justice violated the applicable statutory review standard, set out in G.L. 1956 § 45-24-69(d), when he incorrectly found that a privately owned C&D transfer station was an authorized use under the ordinance, (2) PTO did not have standing to appeal to the board, (3) the Pawtucket building official did not have the authority to issue the original certificate of zoning compliance to PTO, (4) the certificate was neither binding nor an enforceable administrative approval for a particular use, (5) the director of planning and redevelopment was authorized to disregard the director of zoning and code enforcement’s nonbinding interpretation of the ordinance, (6) the trial justice should have recused himself from the case, and (7) the remedy ordered by the trial justice exceeded the board’s statutory authority.   In response, PTO contended that (1) the trial justice properly found that a privately owned C&D transfer station was a permitted use under § 410-12.5(I) of the ordinance, (2) the standing issue was not properly preserved for appeal and, in any event, it had standing because it was an “aggrieved party,” (3) issues relating to the binding nature of the certificate of zoning compliance were not properly before the Court, (4) the city failed to file a timely petition for certiorari to this Court, (5) the city’s motion to recuse the trial justice properly was denied below, and (6) the remedy ordered by the trial justice was within the authority of the board.

Applying a de novo standard of review, but affording the board’s interpretation significant weight and deference, the Court held that a C&D transfer station was not an authorized use under § 410-12.5(I) of the ordinance.  The Court concluded that the board’s interpretation was neither clearly erroneous nor unauthorized.  Furthermore, based on testimony from the board hearing, the Court concluded that the drafters of the ordinance did not intend § 410-12.5(I) to include large-scale C&D transfer stations, such as the one proposed by PTO.  Because this ordinance did not permit a privately-owned C&D transfer station, the Court did not address the other issues.  The Court, therefore, quashed the Superior Court’s order.

Fleet National Bank et al v. Janet Hunt et al, No. 05-204 (April 7, 2008)

This case, involving the interpretation of two separate trust agreements, originated when the petitioner, Fleet National Bank, petitioned the Superior Court for instructions about the proper distribution of assets under the trusts, for which it serves as trustee.  The appellants, Ronald Gay and Wylma Cooley, appealed from a Superior Court order directing the distribution of assets under two trusts. 

To determine the proper distribution of the trusts’ assets, the Supreme Court was presented with two questions: (1) whether adult adoptees can inherit from the lineal ancestors of their adoptive parents when the trust itself directs the trustee to apply Rhode Island’s intestacy laws for purposes of distributing the trust’s assets and (2) whether adult adoptees are excluded from the definition of “issue” as used in a trust agreement.  The Supreme Court answered both questions in the affirmative and, therefore, affirmed the judgment of the Superior Court. 

Frederick Carrozza, Sr. v. Samuel P. Carrozza et al, No. 07-105 (April 7, 2008)

The plaintiff, Frederick Carrozza Sr. (plaintiff), appeals from a Superior Court judgment in favor of the defendants, Samuel P. Carrozza, Ellen Carrozza, and Chevron Investors, LLC (Chevron).  The plaintiff raised several arguments in favor of invalidating several deeds in Chevron’s chain of title for certain real property on Atwells Avenue and, alternatively, argued that he acquired the property by adverse possession.

The Supreme Court determined that the plaintiff’s arguments seeking to invalidate the deeds lacked merit.  Specifically, the Court concluded that (1) any mark on a deed by a grantee that the grantee adopts as his or her own is sufficient to constitute a signature and (2) an improperly acknowledged deed is valid against those who have knowledge of it.  The Court also rejected the plaintiff’s other arguments because they failed to raise genuine issues of material fact.

In response to the plaintiff’s adverse possession claim, the Court concluded that a grantor who transfers freely his interest in real property cannot later reassert the validity of his title in the property against a grantee or the grantee’s successors in interest.  Accordingly, the plaintiff, who transferred the property by warranty deed, could not reassert his title in the property.  

Mary Irene Shepard v. Harleysville Worcester Ins. Co., Inc., No. 07-154 (April 7, 2008)

The plaintiff, Mary Irene Shepard (Shepard), appealed from a Superior Court judgment, granting the motion for summary judgment of the defendant, Harleysville Worcester Insurance Co., Inc. (Harleysville).  The plaintiff, a passenger in a motor vehicle operated by Sarah Dorsey (Dorsey), was injured when a vehicle owned by Hope and Neil Sheridan (the Sheridans) collided with Dorsey’s automobile in Massachusetts.  Dorsey’s insurance carrier, Arbella Insurance Company (Arbella), paid the plaintiff $8,000 in personal injury protection (PIP) benefits pursuant to Mass. Gen. Laws ch. 90, § 34M.   Shepard subsequently filed a personal injury suit in the Massachusetts District Court against the Sheridans, which was submitted to binding arbitration.  The arbitrator determined that the Sheridans’ negligence caused the accident and she awarded $21,816.21 in damages to Shepard.  The plaintiff received a net amount of $13,816.21 after the arbitrator reduced the total award by the $8,000 PIP payment Arbella previously had made to Shepard.

Shepard then made a claim for uninsured motorist (UM) coverage under her own policy with Harleysville in accordance with G.L. 1956 § 27-7-2.1.  She argued that she was entitled to coverage because the $20,000 liability limit of the Sheridans’ insurance policy with Commerce Insurance was less than her damages, which she calculated as the $21,816.21 awarded to her in arbitration.  When Harleysville declined Shepard’s demand for arbitration, she filed an action in the Newport County Superior Court to compel Harleysville to participate.  After both parties filed motions for summary judgment, the hearing justice decided in favor of Harleysville, determining that Shepard lacked standing to bring a UM claim against Harleysville because her damages of $13,816.21 were less than the Sheridans’ liability coverage.

The Court concluded that summary judgment for Harleysville was appropriate because there was no dispute as to any material fact and Shepard did not have a legally valid claim for UM coverage.  The Court determined that, under Massachusetts law, PIP benefits were “granted in lieu of damages,” and that Shepard was entitled only to the amount of damages less the PIP payments; otherwise, Shepard would receive a double recovery, which would be at odds with PIP objectives.  Mass. Gen. Laws ch. 90, § 34M.  The Court then concluded that Shepard was not entitled to UM coverage in Rhode Island because the Sheridans did not meet the statutory definition of “underinsured motorists,” given that the $20,000 limit of their coverage exceeded the $13,816.21 that Shepard legally was entitled to recover.  For these reasons, the Court affirmed the judgment of the Superior Court.

Julie Bowers Schwab v. Walter B. Schwab, No. 07-163 (April 7, 2008)

The defendant Walter B. Schwab (Walter) appealed from a Family Court order denying his motion to set aside a judgment of divorce (judgment) and marital settlement agreement (agreement) for lack of enforceability as a matter of law.  The judgment, entered by the Connecticut Superior Court, and agreement, to be interpreted in accordance with Connecticut law, provided for Walter’s periodic alimony payments to the plaintiff Julie Bowers Schwab (Julie).  These payments were to increase upon the death of Walter’s mother when Walter was to receive his share of a testamentary trust established under the will of his late grandfather.  Although Walter initially honored the increase in payments when his mother died, he later failed to do so and moved in the Rhode Island Family Court to set aside the judgment and agreement for lack of enforceability.  Interpreting Connecticut law, the Family Court denied Walter’s motion, finding that the increase in alimony payments was enforceable because the only contingency on which it was based was Walter’s survival.  Walter appealed this denial to the Supreme Court and again argued that the judgment and agreement were unenforceable because they provided for an increase in his alimony obligations upon the mere expectation of inheritance.  Julie countered that (1) this Court could not change the alimony payments because of the language in the judgment and agreement prohibiting modification, and (2) the doctrine of laches barred Walter from seeking relief.

The Court held that the judgment and agreement were enforceable as a matter of law because the inheritance upon which the increase in alimony payments was based was not so speculative as to constitute a mere expectancy.  Although the Connecticut Supreme Court previously held that alimony awards and property distribution could not be based on the mere expectation of future inheritance, the Court found the present case distinguishable given that the only contingency to Walter’s inheritance was his survival.  The Court found this case to be more similar to various vested and unvested pension benefit cases, in which the Connecticut Supreme Court permitted courts to consider pension benefits when fashioning alimony awards and property distribution even though the receipt of benefits depended on the employees’ survival to a certain age of retirement.  Based on this case law, the Court affirmed the order of the Family Court. 

State v. Kevin Jennings, No. 07-147 (April 7, 2008)

The State of Rhode Island appealed from a Family Court determination that it lacked jurisdiction to hear an alleged instance of child abuse because of a July 3, 2006 amendment to a statute conferring jurisdiction over these matters to the Superior Court.  The state contended that jurisdiction should remain with the Family Court because the charge was pending in the Family Court at the time of the jurisdictional amendment.  The defendant, Kevin Jennings, maintained that the Superior Court had jurisdiction because he was not formally charged by information until November 2006, four months after the jurisdictional amendment divested the Family Court of its jurisdiction.  The Court concluded that the relevant date was when the prosecution commenced—the date of formal accusation, by indictment or information.  Accordingly, because the state did not charge the defendant by information until after the jurisdictional amendment went into effect, the Court concluded that jurisdiction is with the Superior Court, and not the Family Court.  

Alan G. Palazzo et al v. Stephen D. Alves, No. 06-172 (April 3, 2008)

The plaintiffs, Alan G. Palazzo and William B. Palazzo, appealed to the Supreme Court from a Superior Court judgment dismissing their amended complaint, in which they sought damages pursuant to G.L. 1956 chapter 33 of title 9 (The Limits on Strategic Litigation Against Public Participation Act, commonly referred to as the anti-SLAPP statute) and in which they also included common law claims for malicious prosecution and abuse of process. 

On appeal, the plaintiffs contended: (1) that the hearing justice erred in determining that they were precluded from bringing a separate civil action for compensatory and punitive damages after having successfully litigated under the aegis of the anti-SLAPP statute in an earlier case and (2) that the hearing justice erred in determining that their allegations of malicious prosecution and abuse of process were precluded. 

After rejecting the plaintiffs’ proposed two-step process, the Supreme Court concluded that the anti-SLAPP statute envisions a unitary proceeding by providing that, in the same civil action in which a party has successfully invoked the conditional immunity granted by the anti-SLAPP statute, the court in that case “shall award compensatory damages and may award punitive damages * * *.”  Accordingly, the Court concluded that, by not seeking compensatory and punitive damages in the initial action, the plaintiffs’ claims for such damages were deemed to have been waived.

The Court also noted that, because all of the Palazzos’ claims in the instant case are intertwined with the facts that gave rise to the initial civil action, their present contentions could have been considered in the original action; accordingly, their claims were also barred by the doctrine of res judicata.

With respect to the plaintiffs’ malicious prosecution claim, the Court concluded that, by choosing to file a motion to dismiss in the initial action pursuant to the anti-SLAPP statute, the plaintiffs waived whatever right they may have had to commence a subsequent malicious prosecution lawsuit. 

Finally, with respect to the plaintiffs’ allegations of abuse of process, the Court held that the motion to dismiss was properly granted.  Accepting all the allegations in the complaint as true and resolving any doubts in favor of the plaintiffs, the Court concluded that the plaintiffs would not be entitled to relief under any conceivable set of facts. 

After having considered and disposed of all of the plaintiffs’ arguments on appeal and after noting that it had given serious consideration to imposing sanctions, the Supreme Court, in emphatic language, strongly counseled the plaintiffs that the time had come for this litigation to end.

For the above-mentioned reasons, the Court denied the appeal and affirmed the judgment of the Superior Court. 

State v. Manuel Texieira, No. 06-267 (April 3, 2008)

The defendant, Manuel Texieira, was found guilty of the first-degree murder of one Edgar Ortega, and he was sentenced to the mandatory term of life imprisonment. 

The defendant appealed to the Rhode Island Supreme Court, contending: (1) that the trial justice erred in refusing to arrest the judgment of first-degree murder; (2) that the trial justice erred in denying the defendant’s motions for a judgment of acquittal; (3) that the trial justice erred in denying the defendant’s motion for a new trial; and (4) that the trial justice erred in denying the defendant’s motion to correct an illegal sentence.

The Supreme Court affirmed the denial of the motion to arrest a judgment, holding that the defendant could not rely on a motion to arrest a judgment as the procedural mechanism for raising his jurisdictional arguments. 

In addition, the Supreme Court affirmed the trial court’s denial of the defendant’s motion for a judgment of acquittal since the trial justice correctly concluded that the evidence presented was sufficient to sustain a guilty verdict beyond a reasonable doubt for first-degree murder.  The Supreme Court also affirmed the trial justice’s denial of the defendant’s motion for a new trial, concluding that the trial justice did not misconceive the evidence and that she applied the correct legal standard in determining that there was sufficient evidence to support a conviction of first-degree murder.

Finally, the Supreme Court affirmed the trial court’s denial of the motion to correct an illegal sentence, concluding that the defendant had utterly failed to establish that the imposition of a life sentence was not authorized in the instant case.   

For the aforementioned reasons, the Supreme Court affirmed the judgment of the Superior Court.

State v. Ramon Espinal, No. 07-38 (March 28, 2008)

The defendant, Ramon Espinal, was found guilty by a jury of felony assault upon one Wilton Marine in violation of G.L. 1956 § 11-5-2 and was sentenced to five years of probation.  Mr. Espinal appealed to the Supreme Court contending that the trial justice erred in denying his motion for a new trial.  He contended that the sole evidence presented during the trial to the effect that he committed a felony assault (i.e., that he struck Mr. Marine with a bottle) consisted of the prior inconsistent statements made to the police by Mr. Marine’s sister, Ylonka Marine, and by himself; in defendant’s view, those statements do not suffice to support a conviction for felony assault. 

After first determining that defendant had not waived his argument regarding the trial court’s reliance on the prior inconsistent statements, the Supreme Court held that there was sufficient evidence to uphold a conviction for felony assault since there was independent evidence that Mr. Marine had been hit with a bottle (i.e. the physical injuries he sustained) and the prior inconsistent statements were corroborated by other substantive evidence that reinforced the reliability and credibility of the prior inconsistent statements. 

On appeal, defendant also argued that the trial justice erred in denying his motion to exclude evidence regarding the fact that defendant had apologized to Wilton Marine, which evidence the prosecution disclosed to defense counsel on the night before the trial was to begin.  After reviewing the record in its entirety, the Supreme Court o

bserved that it had difficulty perceiving any Rule 16 violation under the circumstances and concluded that in any event the trial justice did not abuse his discretion in not sanctioning the prosecution for the late disclosure of that evidence. 

For these reasons, the Supreme Court denied the appeal and affirmed the judgment of the Superior Court. 

Tonetti Enterprises, LLC v. Mendon Road Leasing Corp., No. 06-195 (March 28, 2008)

The defendant, Mendon Road Leasing Corp. appealed from a Superior Court judgment denying its motion to vacate a District Court default judgment awarding the plaintiff, Tonetti Enterprises, LLC, possession of the premises that Mendon Road had been leasing from Tonetti.  Also before the Court was an appeal by Digital Federal Credit Union from an order denying its motion to intervene in this commercial ejectment action.  The Supreme Court reversed the judgment and order of the Superior Court. 

The Supreme Court held that Mendon Road Leasing Corp. was entitled to receive written notice under Rule 55 of the District Court Civil Rules three days before a hearing on an application for entry of judgment by default, notwithstanding the specific statutory provision of G.L. 1956 § 34‑18.1‑9.  Because Mendon Road Leasing Corp. filed a timely answer, but did not receive notice under Rule 55(b)(2), the Court held that the hearing justice erred by denying Mendon Road Leasing Corp.’s motion to vacate judgment under Rule 60(b)(4) of the Superior Court Rules of Civil Procedure for reason that the judgment so entered was void.  As a result, the Supreme Court reversed the Superior Court’s judgment denying Mendon Road Leasing Corp.’s motion to vacate the judgment of possession.

The Supreme Court also held that Digital Federal Credit Union had asserted a readily identifiable interest in the property, which is the subject of this action.  Moreover, the potential harm to Digital Federal Credit Union was great because Digital Federal Credit Union was facing the extinguishment of its security interest, which drastically limits its ability to recoup its financial losses if Mendon Road Leasing Corp. defaults on the underlying $1.5 million obligation. The Court held, therefore, that Digital Federal Credit Union met the requirements of Rule 24(a)(2) of the Superior Court Rules of Civil Procedure allowing intervention as of right.

Heidi Iselin v. Retirement Board of the Employees' Retirement System of Rhode Island et al, No.  04-189 (March 27, 2008)

This case came before the Supreme Court on February 7, 2007, pursuant to our issuance of a writ of certiorari.  The plaintiff, Heidi Iselin (plaintiff), sought review of a Superior Court judgment affirming a decision of the defendant, the Retirement Board of the Employees’ Retirement System of Rhode Island (defendant), that denied the plaintiff’s request for an accidental disability pension and dismissed her complaint for declaratory relief.  The plaintiff appealed to this Court, contending that the trial justice erred by failing to toll the statute of limitations for accidental disability pensions under G.L. 1956 § 36-10-14(b), because of the plaintiff’s alleged incapacity.

The overarching issue on appeal was whether the statutorily prescribed limitations period set forth in § 36-10-14(b), governing the filing of accidental disability benefits, could be equitably tolled and, if so, whether the trial justice erred in not doing so.  Applying its standards of statutory construction, the Court concluded that the language set forth in § 36-10-14(b) was clear and unambiguous and not subject to an expanded interpretation that included equitable tolling.  The Court noted that its holding in Johnson v. Newport County Chapter for Retarded Citizens, Inc., 799 A.2d 289, 292-93 (R.I. 2002), was clearly distinguishable from this case because of the status of the parties and the nature of the forum involved.  The Court also held that expanding the statute’s language to include the doctrine of equitable tolling to permit the filing of untimely disability claims would conflict with G.L. 1956 § 42-35-15(g)(2) of the Administrative Procedures Act. 

Additionally, the Court observed that the state retirement system is a complex administrative agency that oversees, inter alia, a large number of claims and that a statute of limitation governing those claims is likely to be absolute and devoid of exceptions.  Finally, the Court held that the plaintiff’s request for declaratory relief was not properly preserved in the trial court, nor presented for appellate review. 

For these reasons, the Court affirmed the judgment in this case.

State v. Jose A. Lopez, No. 06-50 (March 26, 2008)

The defendant, Jose A. Lopez, was found guilty of the voluntary manslaughter of one Rafael Graciano.  Mr. Lopez appealed to the Rhode Island Supreme Court, contending, inter alia, that the trial justice violated his constitutional rights when he refused to permit defense counsel to cross-examine the decedent’s brother, Richard Susana, regarding Mr. Susana’s alleged involvement with the decedent in drug dealing and the decedent’s purported past incarceration.  Mr. Lopez also argued that the trial justice erred in denying his motion for a judgment of acquittal, in which motion he contended that the prosecution had failed to meet its burden with respect to his claim of self-defense. 

The Supreme Court concluded that, with respect to the trial justice’s evidentiary ruling as to one particular question posed by defense counsel to Mr. Susana, any error would be harmless because the jury did learn about Mr. Susana’s alleged involvement with the decedent in drug dealing from defendant’s own testimony at trial and from his earlier statement to police, as well as from the testimony of a detective who had been assigned to the case.  Introduction of this evidence enabled defense counsel to argue in his closing argument that the testimony of Mr. Susana was not credible, which defense counsel had stated was his purpose for seeking to cross-examine Mr. Susana about the drug business issue.

The Supreme Court also concluded that the trial justice’s ruling on the defendant’s motion for a judgment of acquittal was supported by the evidence.

Accordingly, the defendant’s appeal was denied and dismissed, and the judgment appealed from was affirmed.

James Mullowney et al v. William Masopust et al, No. 07-34 (March 18, 2008

The defendants appealed from the grant of summary judgment in favor of the plaintiffs, asserting that the Superior Court’s ruling as to the illegality of one of the provisions of the condominium declaration at issue was erroneous.  The defendants also contended that the hearing justice abused his discretion when he granted the plaintiffs’ motion for attorneys’ fees.

The Supreme Court first determined that the provision of the condominium declaration at issue violated the plain language of the Rhode Island Condominium Act, G.L. 1956 chapter 36.1 of title 24.  The Court stated that the clear language of the Condominium Act permits a differential method of assessing the expenses of a condominium association—but only to the extent required by a particular condominium declaration.  The Court determined that the condominium declaration of Newport On-Shore Marina, Inc. does not require a footage-based assessment of the costs of operating the marina, but instead, in violation of the Condominium Act, vests discretion in the board of directors in that regard.  

The Court furthermore concluded that the Condominium Act authorized the hearing justice to award attorneys’ fees and that the hearing justice did not abuse his discretion in awarding attorneys’ fees to the plaintiffs in this case.

For these reasons, the Supreme Court denied the appeal and affirmed the judgment of the Superior Court. 

State v. John Bergevine, No. 07-0013 (March 14, 2008)

 The defendant, John Bergevine, appealed from his conviction by a jury of one count of first-degree child molestation for which he received a sentence of life imprisonment.  The defendant argued that the trial justice erred by allowing a tape recording of the child’s father’s telephone call to a 911 operator into evidence because the statements it contained constituted hearsay evidence.  The defendant made a similar argument regarding statements the father made to a police detective.  The defendant also argued that the trial justice erred in denying his motion for a new trial by failing to acknowledge several inconsistencies in the evidence.  The Supreme Court affirmed the defendant’s judgment of conviction.

The Supreme Court held that the father’s statements to the 911 operator were correctly characterized by the trial justice as both present sense impressions and excited utterances because the trial justice specifically found that the father “was laboring under a condition of stress or excitement caused by the event which [he] claimed to have witnessed,” and also because the father was describing events as they occurred.  Similarly, the Supreme Court held that the father’s statements to the police detective fell within the excited utterance exception to the rule against hearsay because “according to [the detective’s] testimony, [the father] appeared very emotionally upset, breathing quickly, repeating the same words over and over. The Supreme Court held that the trial justice’s rulings with regard to the evidentiary issues were a patently sustainable exercise of his discretion.

Finally, the Supreme Court held that the defendant waived his argument that the trial justice erred in denying his motion for a new trial because the defendant failed to bring any of the purported evidentiary “defects” to the attention of the trial justice.  Moreover, the Court was satisfied that the trial justice appropriately discharged his responsibilities in considering the motion for a new trial.                         

Tidewater Realty, LLC v. State of Rhode Island and Providence Plantation, et al, No. 06-0197 (March 14, 2008)

The plaintiff, Tidewater Realty, LLC (Tidewater), appeals a summary judgment of the Superior Court that was granted in favor of the defendants, the State of Rhode Island, Rhode Island Department of Environmental Management, Rhode Island State Properties Committee (SPC), City of Providence, and Providence Redevelopment Agency (PRA). 

 Tidewater and the state had entered into a purchase and sales agreement for previously-condemned land at 242 Allens Avenue that was surplus to the state’s needs.  The agreement specified that if the City of Providence waived its right to purchase the property under G.L. 1956 § 37-7-3, then the state would convey the property to Tidewater.  When the city decided to exercise its statutory right to purchase the property, the state conveyed the property to the PRA, which was designated by the city in a city council resolution to accept the property on its behalf.  The Superior Court held that the state did not breach its purchase and sales agreement with Tidewater by conveying the property to the PRA.  

On appeal, Tidewater alleged that the state of Rhode Island had breached its agreement because: (1) the city waived its right to purchase the property before it decided to buy it, (2) the state conveyed the property to the PRA and not the city, as specified in the agreement, (3) the city did not have the authority to designate an agent to exercise its rights under § 37-7-3 , and (4) the PRA did not have the authority to purchase the property because it had no redevelopment purpose and the property was not in a redevelopment area, as required by G.L. 1956 § 45-32-5(a)(4).  The plaintiff also appealed a grant of summary judgment in favor of the City of Providence and PRA for tortious interference with contractual relations.

The Court affirmed the Superior Court with respect to the claim of tortious interference with contractual relations because the city and PRA had a colorable property interest at stake, which privileged the actions of the defendants.  The Supreme Court then reversed the Superior Court and held that the PRA exceeded its statutory authority by purchasing land without any redevelopment purpose and that was not in a redevelopment area.  The Court held that the city council resolution granting the PRA the authority to “hold, own, and manage” the property, insufficiently was connected to its purpose of revitalizing blighted and substandard areas.  The Court also held that the property was not in a redevelopment area because the statute required redevelopment areas to be designated as such by a legislative body, with findings that they are blighted or substandard in accordance with G.L. 1956 § 45-31-8(15).  Therefore, the Court held that the conveyance to the PRA was improper, and the state breached its agreement with Tidewater.   

State v. Daymon B. Jones, No. 07-169 (March 14, 2008)

The defendant, Daymon B. Jones, appealed from a Superior Court order denying his motion to vacate sentence and his motion to reduce sentence. The defendant contended that he was sentenced twice for the same conduct in two separate probation-violation hearings.

 In July 1997, defendant received a sentence of fifteen years suspended, with fifteen years probation.  On August 19, 2005, a Superior Court justice ordered defendant to serve ninety days of his then remaining suspended sentence for failure to report to probation and to notify his probation officer of a change in address.  Then on September 6, 2005, a second Superior Court justice found him to be a probation violator as a result of a domestic incident and ordered defendant to serve an additional three years of his suspended sentence.  The defendant’s motions to vacate or reduce the three-year sentence were denied and he appealed.

On appeal defendant conceded that a motion to reduce sentence must be brought within 120 days after the sentence is imposed, as required by Rule 35 of the Superior Court Rules of Criminal Procedure. Nevertheless, defendant argued that this Court should “extend” the 120-day period of Rule 35 on the basis of fairness and reduce his sentence to time served. The Court declined to extend Rule 35, explaining that Rule 35’s 120-day time limitation constituted a jurisdictional limit that could not be enlarged. Since no appeal was filed, the 120-day clock began to run upon entry of the final judgment of conviction in July 1997. The Court concluded, therefore, that defendant’s motion to reduce sentence was time-barred. 

In the alternative, Mr. Jones argued that his sentence was illegal.  He contended that the hearing justice at the September 6, 2005 probation-revocation hearing took into account conduct that had been factored into the ninety-day sentence imposed on August 19, 2005. The Court found that the record unambiguously contradicted the defendant’s assertion.  Accordingly, the Court affirmed the order and remanded the case to the Superior Court.

State v. Roger Graham, No. 06-88 (February 28, 2008)

Roger Graham was convicted of first-degree murder, in violation of G.L. 1956 § 11-23-1, discharging a firearm during the commission of a crime of violence, in violation of G.L. 1956 § 11-47-3.2, and conspiracy, in violation of G.L. 1956 § 11-1-6, for which he received life imprisonment without the possibility of parole, a consecutive life sentence, and a consecutive ten-year sentence, respectively.  Graham appealed his conviction and sentence to the Supreme Court, arguing that the trial justice erred in (1) the jury instructions, (2) various evidentiary rulings, (3) denying the defendant’s motion for a judgment of acquittal on the conspiracy charge, and (4) the proceedings and sentence calling for life imprisonment without the possibility of parole.[1]  The Supreme Court affirmed the defendant’s conviction and sentence. 

First, the Court held that the trial justice did not err in his instructions to the jury.  Specifically, the Court concluded that the law-of-the-case doctrine did not require that the trial justice provide the jury with the same instructions that were used in the defendant’s previous mistrials.  The Court also held that the trial justice properly provided the jury with vicarious-liability and aiding-and-abetting instructions given the conflicting testimony of the defendant’s involvement in the murder.  Furthermore, the Court discerned no error in the trial justice’s definition of reasonable doubt.

Second, the Court rejected the defendant’s contention that the trial justice committed reversible error in various evidentiary rulings.  The Court agreed that the testimony of Officer Scott Travers concerning statements from the victim’s wife should have been admitted as an excited utterance in the context of the case.  Additionally, the Court agreed with the trial justice’s admission of testimony from the defendant’s cellmate about statements the defendant made because the testimony shed light on the defendant’s consciousness of guilt and its probative value outweighed any substantial prejudice. 

Third, the Court concluded that the trial justice properly denied the defendant’s motion for acquittal on the conspiracy charge because there was ample evidence suggesting that the defendant and the victim’s brother-in-law conspired to kill the victim.  Finally, the Court found no error in the life-without-parole proceedings or sentence.  The Court concluded that the trial justice properly asked the jury to consider whether the killing was a murder for hire because there was sufficient evidence suggesting that the defendant killed the victim at the direction of another in exchange for money.  After an independent review, the Court affirmed the sentence of life imprisonment without the possibility of parole because of the defendant’s heartless actions in killing a helpless stranger, his long criminal past, and his lack of remorse for the murder.

State v. Joseph E. McManus, Jr., No. 98-141 (February 21, 2008)

In this heinous and horrific case of domestic abuse that led to the execution-style murder of a wife and beloved mother of three children, the Rhode Island Supreme Court upheld, for the first time, a sentence of life imprisonment without the possibility of parole for a crime of domestic violence occurring between a husband and wife. 

The defendant, Joseph E. McManus Jr. (defendant), appealed his Superior Court conviction for the first-degree murder of his wife, Kelly McGinity McManus.  He was sentenced to life imprisonment without the possibility of parole.  On appeal he argued that: (1) he was entitled to a new trial because the state deliberately failed to provide him with two statements in discovery; (2) the trial justice erred in denying his motion to disqualify one of two prosecutors who tried the case; (3) he was entitled to a new trial because one of his two attorneys had a conflict of interest with one of the prosecutors; (4) the Superior Court erred in denying his request for a mistrial; and (5) a sentence of life imprisonment without the possibility of parole was unwarranted in this case.

The Rhode Island Supreme Court held that: (1) the defendant was not entitled to a new trial because there was no evidence that the state deliberately had withheld the evidence, and the error caused the defendant no prejudice; (2) the trial justice did not err in denying his motion to disqualify a prosecutor, because there was no actual conflict of interest; (3) the Court was without jurisdiction to consider the defendant’s allegation of ineffective assistance of counsel on direct review; (4) the trial justice did not err in declining to grant a mistrial; and (5) the defendant’s sentence to life imprisonment without the possibility of parole was proper in this case because he committed first-degree murder in a manner involving an aggravated battery. 

Accordingly, the Supreme Court upheld the defendant’s convictions.

Flaherty, J., dissented, solely on the issue of life without the possibility of parole, concluding that this case should not be included in the narrow class of the most heinous crimes for which the most extreme sentence should be reserved.   

State v. George Goncalves, No. 06-37 (February 21, 2008)

The defendant, George C. Goncalves, appealed from an adjudication of a probation violation and the partial denial of his motion to dismiss pursuant to Rule 35(a) of the Superior Court Rules of Criminal Procedure. 

The defendant made two arguments on appeal.  First, he argued that the hearing justice abused his discretion when he refused to grant a motion for a continuance.  Second, he argued that the hearing justice misinterpreted Rule 35 when he corrected an earlier order.  The Supreme Court rejected the defendant’s arguments on appeal and affirmed the hearing justice.  The Supreme Court concluded that the hearing justice properly balanced the defendant’s rights against the public’s right to a fair and efficient justice system.  It also noted that the hearing justice explicitly had attempted to preserve the intent of his original sentencing scheme when he corrected the earlier order.  The Court adopted the majority rule that a hearing justice may correct an entire sentencing package pursuant to Rule 35(a) so long as the corrected sentence does not exceed the sentence originally imposed.

National Refrigeration, Inc. v. Standen Contracting Company, Alias et al, No. 06-318 (February 21, 2008)

This case came before the Supreme Court on December 3, 2007, on appeal by the plaintiff, National Refrigeration, Inc. (plaintiff or National), from an entry of summary judgment in favor of the defendants, Standen Contracting Company, Inc. (Standen), and United States Fidelity and Guaranty Company (USF&G and collectively defendants).  The motion justice noted that two previous contract documents had outlined procedural steps for the submission of change order requests covering increased labor costs, but that the contract at issue did not contain those provisions.  She concluded that under the unambiguous terms of the contract, the plaintiff was not entitled to the change order it requested, and she granted the defendants’ motion for summary judgment. 

The Supreme Court held that the contract was unambiguous in its terms, and it affirmed the ruling of the trial justice.  The Court rejected National’s argument that it had a legitimate understanding that it was entitled to reimbursements that were not set forth in the contract.  Additionally, the Court held that the comments made by a third-party concerning a similar contract did not give rise to ambiguous contract terms. 

For these reasons, the Court affirmed the judgment in this case and remanded the record to the Superior Court.

State of Rhode Island v. Medical Malpractice Joint Underwriting Association, No. 06-71 (February 18, 2008)

This case came before the Supreme Court on October 31, 2007, on appeal by the State of Rhode Island (state or plaintiff), from a Superior Court judgment that denied its complaint for declaratory relief and granted judgment for the defendant, Medical Malpractice Joint Underwriting Association (JUA or defendant).  This matter concerned a coverage dispute between the JUA and the state that arose when the state was substituted as a party defendant for a state employee, in a tort claim.

The Supreme Court held that the issues in the case before it were moot.  In rejecting the state’s assertion that it had a continuing stake in the controversy, the Court reasoned that, because it had affirmed the judgment in the underlying tort claim in Broadley v. State of Rhode Island, No. 2007-80-A. (R.I., filed Feb. 11, 2008), the possibility of any future litigation of the issues raised by the plaintiff in that case was foreclosed.  Additionally, because the statute of limitations for medical malpractice tort claims is three years from the time of the occurrence, barring certain exceptions, the Court deemed it highly unlikely that any more claims under these occurrence-based policies would arise between the JUA and the state.  The Court concluded that the ultimate issue in the appeal – whether the state is entitled to insurance coverage under a lapsed medical malpractice liability

 insurance policy between the JUA and a Department of Mental health, Retardation, and Hospitals physician – was not capable of repetition, yet evading review. 

For the reasons stated in this opinion, the Supreme Court denied the appeal and remanded the papers to the Superior Court.

Sanford M. Kirshenbaum v. Fidelity Federal Bank, F.S.B, No. 07-86 (February 15, 2008)

The plaintiff, Sanford M. Kirshenbaum, appealed to the Supreme Court from the entry of summary judgment in favor of the defendant, Fidelity Federal Bank, F.S.B. (Fidelity Bank).

Mr. Kirshenbaum initially alleged in his complaint that Fidelity Bank had violated G.L. 1956 §§ 34-26-4 and 34-26-5 when it discharged his mortgage rather than grant him an assignment as he had requested.

The Supreme Court concluded that, pursuant to the statutory terms of § 34-26-4, an assignment of a mortgage may only be granted to a third party and not to the mortgagor; therefore, the defendant was not statutorily authorized to assign the mortgage to the plaintiff as he had requested. 

On appeal, the plaintiff also contended that summary judgment was not appropriate since the facts in the case are (in the plaintiff’s words) “ridiculously convoluted.”  The Supreme Court concluded that there was absolutely no merit to that argument because, even though the material facts may have been complex, they were not in dispute.

For these reasons, the Supreme Court affirmed the hearing justice’s grant of summary judgment in favor of the defendant.

Steven Riley v. The Rhode Island Department of Environmental Management et al., No. 06-175 (February 14, 2008)

Steven Riley appealed an administrative decision to the Superior Court after the Rhode Island Department of Environmental Management (DEM) denied his application for a principal-effort fishing license.  Riley then sought a declaratory judgment that the limited entry licensing scheme contained in G.L. 1956 chapter 2.1 of title 20 unconstitutionally infringed upon his due process and equal protection rights, as well as the right of fishery found in article one section seventeen of the Rhode Island Constitution.  The Superior Court affirmed the agency’s determination that Riley was ineligible for the license because he did not possess the license in the immediately preceding year.  The Superior Court held that the statute violated neither the United States nor Rhode Island Constitutions, and it granted summary judgment for RIDEM on all counts. 

The Supreme Court affirmed the judgment, holding that no fundamental right to engage in a lawful calling was implicated where the licensing scheme merely limited the type of species a commercial fisherman could take.  The Supreme Court applied a rational-basis test to determine whether granting Riley a commercial fishing license, instead of a principal-effort license, offended the due process clause.  The Court held that the statute was not unreasonable and had a substantial relationship to the goal of limiting the number of licenses to fish these particularly vulnerable species. 

The Court also held that no fundamental right of fishery was implicated by the legislation.  The Court applied rational-basis scrutiny to insure that the statute complied with the equal protection clause, holding that the statute was a legitimate expression of the Legislature’s concerns for the conservation of resources and the viability of the fishing industry.  Furthermore, the Court held that limiting the number of licenses available to fish for these restricted species, based on the possession of a restricted fishing license the year previous to one’s application, was a rational way to achieve those goals.

John F. Pierce v. Ashbel T. Wall, No. 06-234 (February 11, 2008)

In this case, the applicant, John F. Pierce (Pierce or applicant), appeals from a Superior Court judgment granting in part and denying in part his application for postconviction relief based on his conviction for numerous counts of sexual assault.  The State of Rhode Island (state) has cross-appealed from the portion of the judgment that granted the application for postconviction relief.  The underlying facts of this case are set forth in State v. Pierce, 689 A.2d 1030 (R.I. 1997).  The hearing justice issued a written decision, in which he granted the application concerning three counts based on an erroneous jury instruction, and denied the application concerning two counts, finding that these counts were not duplicitous. 

The appropriate method for challenging a duplicitous complaint, indictment, or information is by filing a pretrial motion to dismiss pursuant to Rule 12(b)(2)(3) of the Superior Court Rules of Criminal Procedure.  In the present case, defendant did not file a motion to dismiss before trial; therefore, this issue is waived. 

The state appeals from the portion of the judgment that granted postconviction relief with respect to three of the counts.  The applicant alleged that, after his conviction was affirmed, the jury instruction concerning the element of force and coercion that was given by the trial justice was declared erroneous by this Court in State v. Saluter, 715 A.2d 1250, 1253 (R.I. 1998). 

Under the Supreme Court’s established jurisprudence, there was no proper basis to apply the rule in Saluter to the final judgment in this case because it cannot be deemed a watershed rule.  The Court’s holding in Saluter in no way alters its understanding of the bedrock procedural elements that are essential to the fairness of a criminal proceeding. 

For the foregoing reasons, the Court denies the applicant’s appeal and grants the state’s appeal, thereby vacating that portion of the Superior Court’s judgment that granted the application for postconviction relief and affirming that portion of the judgment that denied the application for postconviction relief.

Melodye Broadley, Guardian for Linda Sue Broadley et al v. State of Rhode Island et al, No. 07-80 (February 11, 2008)

In this case, the plaintiffs, Melodye Broadley (Melodye), as guardian of Linda Sue Broadley (Linda), and Linda (hereinafter referred to collectively as the plaintiffs), appeal from Superior Court judgments in favor of the defendants, Samuel Waddington (Waddington) and the State of Rhode Island (state and collectively the defendants), on all counts of the plaintiffs’ complaint.

The genesis of this dispute was the discovery in 1994 that the plaintiff, Linda, a severely handicapped person, who resided at a state-operated group home, suffered a severe bruise in the anal area of her body.  However, no criminal charges were brought against anyone.  A civil action was filed that alleged intentional and negligent tortious conduct on the part of numerous named and unnamed defendants.

At the close of the plaintiffs’ evidence, the defendants moved, under Rule 52 of the Superior Court Rules of Civil Procedure, for judgment as a matter of law.  Although the trial justice cited Rule 52, she employed the standard set forth in Rule 50(a)(1) of the Superior Court Rules of Civil Procedure.  Rather than make factual findings and credibility determinations, the trial justice declared that there was no evidence to support the allegations in the plaintiffs’ complaint. 

The Supreme Court’s review of the trial record reveals that the trial justice neither misconceived nor overlooked any material evidence, and her finding that there was insufficient proof to support a prima facie case was not clearly wrong.  Her decision was supported by the evidence or lack of evidence in this case, particularly the plaintiffs’ failure to establish a standard of care for negligence and the absence of proof of intentional misconduct.  Although the trial justice applied the incorrect standard in this case, the Supreme Court is satisfied that the error was harmless.  The judgment in this case turned on a failure of proof that the trial justice adequately addressed when she reviewed the evidence and ordered judgment for the defendants. 

For the foregoing reasons, the Supreme Court affirms the judgment of the Superior Court.

Mary Ryan et al v. Roman Catholic Bishop of Providence, et al, No. 04-49 (February 8, 2008)

The plaintiffs, Mary Ryan and Thomas Ryan, brought this action against several nonperpetrator defendants alleging numerous causes of action resulting from a sexual assault that was perpetrated on Ms. Ryan by a Roman Catholic priest, one Louis W. Dunn.  They appealed to the Rhode Island Supreme Court from the Superior Court’s entry of judgment in favor of the defendants due to the time-barred nature of the plaintiffs’ claims. 

On appeal, the plaintiffs contended: (1) that the Superior Court erred in granting summary judgment in favor of the instant defendants; (2) that the Superior Court erred in denying the plaintiffs’ motion to recuse; (3) that the Superior Court erred in denying the plaintiffs’ motion to vacate judgment; and (4) that the motion justice erred in not holding a hearing with respect to the instant defendants’ motion for summary judgment, the plaintiffs’ motion to recuse, and the plaintiffs’ motion to vacate.

The Court first determined that the applicable statute of limitations for a civil action filed against nonperpetrators in the sexual abuse context is three years.  The Court then went on to conclude that, since the sexual assault that was the basis for the instant civil action took place on June 7, 1982, the last date upon which the plaintiffs could properly have commenced suit was June 7, 1985.  Accordingly, the Court determined that, since the plaintiffs’ complaint was not filed within the applicable three-year period, it would be time-barred absent a valid tolling theory.  The Court then addressed each of the plaintiffs’ asserted tolling theories, and it concluded that no valid tolling theory applied. 

The Court then went on to reject the plaintiffs’ argument that the Superior Court justice was biased due to the fact that he encouraged the plaintiffs to engage in settlement negotiations.  The Court further stated that it is very much an important part of the policy of the courts of Rhode Island (and courts in general) to encourage the amicable settlement of disputes.  The Court also held that the denial of the motion to vacate was not an abuse of discretion and that the Superior Court justice did not abuse his discretion when he elected not to hold a hearing with regard to the several motions filed in the case.

Accordingly, the Court affirmed the grant of summary judgment in favor of the defendants.

Mary Ellen Zuba v. Pawtucket Credit Union, et al, No. 07-52 (February 6, 2008)

The plaintiff, Mary Ellen Zuba, appealed from the Superior Court’s grant of the defendants’ motion for summary judgment in this civil action, in which she alleged that the defendants had acted fraudulently by allegedly making misrepresentations about a piece of property that she purchased in 1990. 

Mrs. Zuba and her husband had purchased property in Attleboro, Massachusetts from Pawtucket Credit Union (Credit Union), and they financed the purchase with a mortgage from that same Credit Union.  After the Zubas encountered financial difficulties, they conveyed the property back to the Credit Union in exchange for forgiveness of their outstanding debt.  The Zubas executed a Deed in Lieu of Foreclosure and an accompanying affidavit stating that the consideration represented the fair value of the property.  In her lawsuit, Mrs. Zuba argued that the defendants, the Credit Union and certain of its agents, had misrepresented the value of the property and breached a fiduciary duty which she claimed that they owed her.

After considering the memoranda submitted by the parties and the relevant legal principles, the Supreme Court upheld the Superior Court’s grant of summary judgment. Engaging in a substantive analysis of the Deed in Lieu of Foreclosure transaction, the Court concluded that no genuine issue of material fact existed with respect to the plaintiff’s claims and that the defendants were entitled to judgment as a matter of law.  Whether under a theory of rescission or of accord and satisfaction, the Court concluded that the plaintiff’s claims had been extinguished by her execution of the Deed in Lieu of Foreclosure and the accompanying affidavit as to the fair market value of the real estate.

The Court therefore upheld the Superior Court’s grant of summary judgment.

Reynaldo Rodriguez v. State of Rhode Island, No. 06-144 (February 4, 2008)

The applicant, Reynaldo Rodriguez, appealed from the denial of his application for postconviction relief.  The applicant argued that the Superior Court erred in denying his application for postconviction relief because his trial counsel failed to present the allegedly exculpatory testimony of a witness, either in person or by introducing a transcript of the witness’s previous testimony, constituting ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.

The Supreme Court held that the applicant had failed to demonstrate that his trial counsel’s representation was objectively unreasonable.  Because the Supreme Court deemed the trial counsel’s tactical decisions as clearly within the bounds of what is constitutionally required to constitute effective assistance of counsel, the Supreme Court affirmed the denial of Mr. Rodriguez’s application for postconviction relief.

William Willis v. A.T. Wall et al, No. 06-28 (February 4, 2008)

The applicant, William Willis, appealed from the Superior Court’s denial of his applic

tion for postconviction relief. In the underlying criminal proceeding, Mr. Willis pled nolo contendere to two counts of second-degree child molestation and was sentenced to an aggregate of twenty years in prison, twelve of which were suspended, with probation. Mr. Willis subsequently filed an application for postconviction relief, alleging ineffective assistance of counsel, which the hearing justice denied.

On April 8, 2005, Mr. Willis moved to remand the case to the Superior Court to present newly discovered evidence to support his petition for postconviction relief. The Supreme Court granted the motion, stating, “The defendant’s motion to remand this case to the Superior Court in order that defendant may seek to present newly-discovered evidence in support of his postconviction application, as prayed, is granted. Following hearing on defendant’s request, the case shall be returned to this Court forthwith.”

On remand, at the conclusion of the hearing, Mr. Willis conceded that the evidence presented to the Superior Court was known to him at the time of his trial, and thus it did not meet the legal standard for newly discovered evidence set forth in State v. Hazard, 797 A.2d 448, 463-64 (R.I. 2002). Instead, he argued that he should be allowed to raise the issue of ineffective assistance of his trial attorneys in light of the newly proffered evidence. The hearing justice rejected the argument and declined to expand the scope of the inquiry beyond the Supreme Court’s limited remand.  He ruled that the evidence was not newly discovered and ordered the papers transferred back to the Supreme Court.  The Supreme Court affirmed, holding that the hearing justice appropriately limited the inquiry to the issue of newly discovered evidence.

Roger N. Brochu v. Richard Santis, No. 07-115 (January 30, 2008)

In this case, the plaintiff, Roger N. Brochu (Brochu or the plaintiff), appeals from the Superior Court’s grant of summary judgment in favor of the defendant, Richard Santis (Santis or the defendant).  In 2004, the defendant, a member of Santis, Martins & Croke, LLC, a company engaged in the business of real estate development, contacted Brochu, a real estate salesperson, seeking information about the availability of real estate for the purpose of development.  Brochu and Santis met to review documents related to a multilot parcel in Pawtucket, and in a subsequent meeting, the defendant expressed an interest in acquiring the property.  The plaintiff prepared a hand-written offer form that was signed by the defendant; the offer included a term that conditioned its acceptance upon the payment of a “3% commission.”  Save for this document, there was no written or signed agreement between Brochu and Santis with respect to the property.

Eventually, an agreement was reached between Santis and the seller for the purchase of a parcel, which agreement made reference to a different plat composition and a different price, and Santis was not compensated under the terms of that agreement.

The plaintiff filed suit alleging fraud, breach of implied contract, breach of good faith and fair dealing, and also seeking damages based on quantum meruit.  The trial justice granted the defendant’s motion for summary judgment and concluded that the evidence before her, at best, amounted to a commission-based real estate contract that was not in writing as required by the Statute of Frauds, G.L. 1956 § 9-1-4.  The trial justice rejected the plaintiff’s contention that the parties entered into a contract for a finder’s fee payment.   

The Supreme Court held that in the absence of requisite evidence of an oral agreement for a finder’s fee, the trial justice properly granted summary judgment.  The Court held that viewed in the light most favorable to the plaintiff, there was an oral contract for a real estate commission.  In this state, the Statute of Frauds requires that an individual seeking the payment of a commission in connection with the sale of real estate is denied recovery, unless the agreement is documented in writing.  The Court also noted that allegations of fraud, standing alone, are insufficient to circumvent the Statute of Frauds.  Accordingly, the Court held that the alleged oral agreement for the payment of a commission upon the sale of real estate is unenforceable. 

For these reasons, the judgment of the Superior Court was affirmed.

State v. Joseph L. Hall, No. 06-84 (January 30, 2008)

Joseph L. Hall appealed after being convicted for unlawfully carrying a pistol without a license, unlawfully possessing a firearm after previously having been convicted of a crime of violence, assaulting a police officer, and eluding a police officer.  The Supreme Court affirmed the convictions in all respects. 

The Supreme Court held that showing the police officer a single photograph of the defendant was not unduly suggestive under the present circumstances in which the perpetrator just escaped and the officer recently had struggled with him.  Furthermore, the Court held that the officer’s identification also was independently reliable and, therefore, properly was admitted into evidence at trial.  The Court held that the other witness’s testimony, with respect to the identification of the perpetrator, was proper under Rule 602 of the Rhode Island Rules of Evidence because she had ample opportunity to view the suspect.  The suspect crashed into the witness’s car while he was trying to escape the police, and the witness intently had watched the suspect as he struggled with the officer. 

After looking at the totality of circumstances, the Court also held that the defendant’s statement was voluntary.  The Court said that the officer’s encouraging the defendant to tell the truth and the officer’s promise to communicate his cooperation to the prosecutors and the court, did not render the defendant’s statement involuntary.  Furthermore, the fact that the defendant tried to exculpate himself from the worst of the crimes, by alleging that the firearm belonged to an unnamed third party, was a factor in favor of voluntariness.  Finally, the Court held that neither the United States nor the Rhode Island Constitutions supported the contention that prior convictions must be proven to a jury beyond a reasonable doubt or pled in the indictment.

Town of Richmond v. Rhode Island Department of Environmental Management et al, No. 05-343 (January 25, 2008)

In this case, the defendant, Rhode Island Department of Environmental Management (DEM), and the defendant-intervenor, Charbert, Division of NFA Corporation (Charbert and collectively defendants), appeal from a Superior Court judgment entered in favor of the plaintiff, the Town of Richmond (Richmond or the town).  This case arose when DEM served Charbert with a Notice of Violation (NOV), alleging violations of various statutes and administrative regulations under DEM’s jurisdiction.  Charbert requested a hearing with the chief hearing officer (hearing officer) of DEM’s Administrative Adjudication Division (AAD), and Richmond was permitted to intervene. 

Thereafter, Richmond received a draft copy of the consent agreement on the same day that Charbert signed the final version.   Charbert then withdrew its request for a hearing on the NOV, which closed the AAD proceedings.  Richmond’s objection to the settlement was not entertained.

The town filed a complaint against DEM in Superior Court.  The trial justice found that, as an intervenor, Richmond was a full party to the administrative proceeding with all of the procedural protections that other parties enjoy.  He found that, since Richmond did not participate in the process, the proceeding at the hearing level became “unlawful and a nullity.”  The trial justice ordered that the consent agreement be set aside and that the matter proceed to a hearing with Richmond’s participation. 

This Court holds that the trial justice appropriately was vested with jurisdiction to decide this case under the Uniform Declaratory Judgments Act, but that he did so erroneously. 

This Court also holds that, although an intervenor is permitted to become a party to the hearing, only the petitioner has the right to withdraw a request for a hearing, which is deemed a withdrawal with prejudice.  Charbert, as the petitioner, could initiate a hearing; it also could withdraw its request at any time, thereby effectively ending the proceeding before the AAD.  Furthermore, the director was authorized to enter into a consent agreement without seeking any input from the intervenor or the hearing officer.  However, Richmond was not a party to the consent agreement, nor bound by its terms.   

Although the practice of allowing intervention in an administrative proceeding may in some cases be unwise and sometimes may serve to muddy waters that already may be compromised, what is clear is that the intervenor is not vested with the authority to control the result.  The Court hastens to add, however, that it does not condone the ham-handed treatment of a town by this state agency.  At a minimum, the town was entitled to courteous and professional treatment; it received neither. 

For the reasons stated in this opinion, the Court vacates the judgment of the Superior Court.  

Mary Notarantonio v. James A. Notarantonio et al, No. 06-121 (January 18, 2008)    

The plaintiffs appealed from a January 5, 2006 judgment in favor of the defendants in this dispute over gifts of stock in a family business and real estate.  The trial justice entered a judgment in favor of the defendants for all claims against them, with the exception of a judgment for the plaintiffs for rescission of the transfer of seventeen shares of stock and $4,539 representing the amount of distributions attributable to those shares.  The defendant James A. Notarantonio filed a cross-appeal challenging the rescission.

The Supreme Court affirmed the decision of the Superior Court in all respects. The Court found that although the trial justice did not specifically address the allegation of breach of fiduciary duty, her findings of fact for all intents and purposes preclude a finding that James Notarantonio breached any such duty.  The Supreme Court also held that the trial justice’s finding that Mary Notarantonio’s transfer of stock and real estate to James Notarantonio was not the result of misrepresentation, undue influence or duress was not clearly erroneous.  Additionally, the Court was satisfied that the trial justice’s factual findings were sufficient to support her legal conclusions, even though the trial justice may not have articulated specific findings with respect to each and every disputed fact. 

James Notarantonio cross-appealed from that portion of the judgment entered in favor of the plaintiffs for rescission and return of the seventeen shares of stock and for the $4,539, which represents the distribution he had received with respect to those shares. The Supreme Court held that the trial justice’s findings that Mary Notarantonio did not sign the operative transfer document negated both the present donative intent and the actual or symbolic delivery of the shares. 

State v. Peter Tiernan, No. 06-306 (January 16, 2008)   OPINION

State v. Peter Tiernan, No. 06-306 (February 28, 2008)  ORDER

The defendant, Peter Tiernan, was found guilty of felony assault on one Kevin Finnegan in violation of G.L. 1956 § 11-5-2 and was sentenced to four years of probation.  Mr. Tiernan appealed to the Supreme Court, contending that the trial justice violated his Sixth Amendment right to confrontation by excessively limiting his ability to cross-examine the accusing witness.

At trial, during the cross-examination of Mr. Finnegan, the complaining witness, defense counsel attempted to question him about an intended civil suit and the injuries that he had allegedly incurred in the incident that was the subject of the criminal trial, but the prosecutor objected on grounds of relevance.  Mr. Tiernan’s defense counsel argued that inquiry regarding the alleged injuries and Mr. Finnegan’s varying descriptions of same was necessary in order to show that the witness was biased, in view of the fact that the witness intended to file a civil suit against defendant.  The trial justice permitted defense counsel to ask the witness only whether or not he intended to file a civil suit, but he did not allow defense counsel to ask any further questions regarding the suit or the injuries sustained by Mr. Finnegan.

After considering the record in its entirety, the Supreme Court held that, although defense counsel had not been totally precluded from attempting to show that Mr. Finnegan was a biased witness, the scope of cross-examination that the trial justice did allow as to the issue of the witness’s intended civil suit was so limited as to constitute a virtually total preclusion and was insufficient under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Rhode Island Constitution.  Thus, the Court held that the defendant is entitled to a new trial.

For these reasons, the Supreme Court sustained the appeal and vacated the judgment of conviction.

Barbara A. Peck et al v. Jonathan Mitchell Builders, Inc., No. 07-160 (January 9, 2008)

Avalon Holdings, LLC (Avalon), an objecting creditor, appealed from a Superior Court order granting the petition of Barbara A. Peck and Jeffrey Cote, the petitioners, to appoint a permanent receiver to oversee the liquidation and eventual dissolution of the respondent Jonathan Michael Builders, Inc. (JMB), an insolvent corporation.  

After Avalon sued JMB for breach of contract and unjust enrichment in relation to an abandoned residential construction project, the petitioners Peck and Cote, the only stockholders of JMB, filed a petition for the appointment of a receiver to avoid the dissipation and depreciation of corporate assets.  Avalon filed an objection and motion to dismiss the receivership petition.  The petitioners subsequently moved to amend the petition to provide additional grounds to appoint a receiver and voted, at a shareholder meeting, to dissolve the corporation.

A hearing justice decided that the Superior Court had both statutory and inherent jurisdiction to appoint a permanent receiver to liquidate the insolvent corporation.  Avalon appealed from the order and argued that the hearing justice erred as a matter of law when he found that the Superior Court had both statutory and inherent jurisdiction to appoint a receiver to liquidate an insolvent corporation upon the voluntary petition of all of the corporation’s shareholders.  The Supreme Court held that the Superior Court may supervise the liquidation of an insolvent corporation under G.L. 1956 § 7-1.2-1314(a)(1)(vi) by appointing a receiver after the sole shareholders passed a resolution to dissolve under § 7-1.2-1302.

State v. Marshane Young, No. 07-23 (January 7, 2008)

In this case, the State of Rhode Island (state) appeals from a Family Court order dismissing the criminal information that charged Marshane Young (Marshane or defendant) with second-degree child abuse upon her then seventeen-year-old daughter, in violation of G.L. 1956 § 11-9-5.3(b)(2), (d), and (e).  The state contends that the Family Court trial justice exceeded his authority and clearly was wrong when, at the pretrial conference, upon defendant’s oral request, he summarily dismissed this case.  We agree.

Even though defendant chose not to file a motion to dismiss in Family Court, the trial justice summarily dismissed the information after counsel for defendant said, “I’m going to ask that the case be dismissed.”  Moreover, there was no hearing scheduled in conformity with Rule 9.1 of the Superior Court Rules of Criminal Procedure and G.L. 1956 §§ 12-12-1.7 and 12-12-1.8.  Indeed, on the record before us, there is no suggestion that the trial justice even was aware of Rule 9.1 or the findings that are required in order to grant a dismissal. 

The Supreme Court held that because defendant failed to file a motion to dismiss in accordance with Rule 9.1, any argument based on a purported lack of probable cause was waived.  Furthermore, even if defendant had moved to dismiss, the motion would have failed because the existence of probable cause is manifest within the four corners of the information package. 

Although the Supreme Court recognizes that the mission of the Family Court is to reconcile the parties and reestablish family relations, it is also mindful that there are two parties to a felony prosecution: the defendant and the State of Rhode Island.  Both parties are entitled to a fair hearing.  For the Family Court to undertake a final dismissal, without notice that would afford the state an opportunity to be heard, and in the absence of findings, is clear error. 

The Legislature has seen fit to vest the Family Court with exclusive jurisdiction of a limited class of felony crimes.  In exercising that jurisdiction, the Family Court is obliged to comply with the state’s substantive and procedural law.  Here, the trial justice summarily dismissed the information and failed to make any findings or set forth his reasons for doing so.  The Supreme Court deemed that dismissal to be reversible error.

Accordingly, the Supreme Court vacated the judgment and remanded this case to the Family Court for trial. 

State v. Linda Strom, No. 07-24 (January 7, 2007)

In this case, the State of Rhode Island (state) appeals from a Family Court order dismissing the criminal information that charged Linda Strom (defendant) with cruelty to or neglect of child in violation of G.L. 1956 § 11-9-5 because she had strapped her grandson to his bed.  The state contends that the Family Court justice exceeded his authority and clearly was wrong when he dismissed this case, sua sponte, at a pretrial conference.  The trial justice summarily dismissed the information, notwithstanding the fact that there was no motion to dismiss the case in conformity with Rule 9.1 of the Superior Court Rules of Criminal Procedure and G.L. 1956 §§ 12-12-1.7 and 12-12-1.8.  The record does not indicate that the trial justice even was aware of Rule 9.1 or of the need to make the findings that are required to grant a dismissal. 

The Supreme Court held that because the defendant neglected to file a timely motion to dismiss in accordance with Rule 9.1, the trial justice lacked the authority to dismiss the criminal information.  Moreover, had defendant moved to dismiss the criminal information, the motion would fail because the existence of probable cause is manifest within the four corners of the information package.  

Although the Court recognizes that the mission of the Family Court is to reconcile the parties and reestablish family relations, we are also mindful that there are two parties to a felony prosecution: the defendant and the State of Rhode Island; both sides are entitled to a fair hearing.  By prohibiting the Attorney General from fully prosecuting a felony information, because of a sua sponte dismissal in violation of the Court’s own rules, the trial justice deprived the state of a fair proceeding.  For the Family Court to undertake a final dismissal, without notice that affords the state an opportunity to be heard, and in the absence of findings, is clear error. 

The Legislature has seen fit to vest the Family Court with exclusive jurisdiction of a limited class of felony crimes.  In exercising that jurisdiction, the Family Court is obliged to comply with the state’s substantive and procedural law.  Here, the trial justice summarily dismissed the information and failed to make any findings or set forth his reasons for dismissing the information.  We deem this reversible error.

For these reasons, the Supreme Court vacated the judgment and remanded the case to the Family Court for trial. 

State v. Nelson Bido, No. 07-26 (January 7, 2008)

In 2006, a jury convicted the defendant, Nelson Bido, of aiding and abetting the murder of Jorge Confessor and conspiracy to commit robbery.  Mr. Confessor was shot and killed in the parking lot of Citizens Bank on Cranston Street in Providence on April 15, 1991.  On appeal, Mr. Bido argued that the convictions must be reversed and that either the indictment be dismissed or he be given a new trial.  Specifically, he contended the trial justice erred in four crucial respects by denying: (1) his pro se motion to dismiss for lack of a speedy trial; (2) his motion for a continuance to secure new counsel; (3) his motion for a continuance to investigate recently disclosed discovery; and (4) his motion to suppress a statement he gave to a New York City police detective.  

The Supreme Court affirmed the judgment of conviction. The Court rejected Mr. Bido’s contention that his statements to the trial justice before trial should have been characterized as a motion to dismiss for lack of a speedy trial. The Court held that Mr. Bido had not presented the motion to the trial justice in a rational and recognizable posture, and the issue was not preserved for review. The Court next addressed Mr. Bido’s motion to secure new counsel.  The Court held that the trial justice did not err in denying the defendant’s attempt to secure new counsel. The Court ruled that the trial justice did not abuse his discretion in determining that the interest of the public in an efficient and effective judicial system outweighed Mr. Bido’s purported interest in securing counsel of his choice.

The Court also upheld the trial justice’s denial of the defense’s request for a continuance so that it could investigate information disclosed by the state on the morning of trial. The Court reasoned that the only issue on appeal was whether the Superior Court afforded Mr. Bido a sufficient opportunity to deal with the information before the trial began and that the trial justice did not commit an abuse of discretion by declining to continue the case.  The Court was satisfied that the trial justice appropriately weighed both the defendant’s and the state’s interests in considering the request for a continuance and that the lower court’s ruling was reasonable under the circumstances.  Finally, the Court agreed with the trial justice that Mr. Bido’s statement to a police detective was voluntary and was not the product of his overborne free will.

David Arnold v. Ronald Lebel, in his capacity as acting director of the Rhode Island Department of Human Services. No. 2006-254-Appeal.(December 24, 2007)
 

The plaintiffs in this case, David Arnold and Pauline Belanger (plaintiffs), applied to the Rhode Island Department of Human Services (DHS) for medical assistance alleging that they were disabled adults. DHS determined that the plaintiffs were not disabled and therefore were ineligible for medical assistance. The plaintiffs notified DHS of their intention to take an administrative appeal.
Before the agency hearings on each plaintiff’s administrative appeal, the plaintiffs filed a declaratory-judgment action in Superior Court challenging DHS’s occasional practice of allowing DHS hearing officers to have ex parte off-the-record communications about cases currently before an officer. The Superior Court issued a declaratory judgment in favor of the plaintiffs, holding that the Rhode Island Administrative Procedures Act, G.L. 1956 chapter 35 of title 42, prohibits ex parte communication with anyone about contested or material adjudicatory facts or opinions concerning the merits of an applicant’s pending appeal and that all evidence that is received or considered must be on the record.
Additionally, Arnold cross-appealed, alleging that certain portions of the trial justice’s ruling did not conform with due process. Arnold, however, did not point to any applicable rule, and thus the Supreme Court concluded that his cross-appeal was without merit. The Supreme Court affirmed the trial justice’s ruling and remanded the record to the Superior Court.

State v. Matthew Thomas et al, No. 07-264 (December 21, 2007)

In this highly publicized case involving the Rhode Island State Police’s execution of a search warrant at a smoke shop operated by the Narragansett Indian Tribe over four years ago, six tribe members, who face criminal misdemeanor charges, sought to elicit testimony at trial from Governor Donald L. Carcieri (the Governor).  The defendants hoped to elicit testimony from the Governor to the effect that he had instructed Colonel Steven M. Pare, then superintendent of the Rhode Island State Police, to withdraw from the execution of the search warrant if state troopers faced resistance. 

The Superior Court denied the Governor’s motion to quash a subpoena that the defendants had served on him.  The Governor, contending that he is protected from having to testify, petitioned the Supreme Court for a writ of certiorari. 

The Governor urged the Supreme Court to adopt an executive testimonial privilege, which would allow him to choose not to testify in this criminal misdemeanor trial.  However, the Court concluded that it did not need to reach that question because, at an even more fundamental level, the Governor’s testimony, even if compelled, would be irrelevant as a matter of law.

Accordingly, the Supreme Court quashed the order of the Superior Court and remanded the case to the Superior Court.

order of the Superior Court and remanded the case to the Superior Court.

140 Reservoir Avenue Associates v. Sepe Investments, LLC et al v. City of Providence, No. 06-256 (December 21, 2007)

The City of Providence (city), appealed from a Superior Court judgment ordering that a writ of mandamus be issued in an action filed by 140 Reservoir Avenue Associates (140 Reservoir Avenue) to foreclose the right of redemption to property it had purchased at a tax sale.  The writ directed the city treasurer to refund to 140 Reservoir Avenue $81,740.99, the amount the latter had paid for the property at the tax sale.  Two days before the tax sale, the first mortgagee foreclosed on the contested property. The high bidder at the foreclosure sale sold the property to Sepe Investments, LLC (Sepe), which, in turn, granted a mortgage to Slade’s Ferry Trust Company (Slade’s Ferry).

Before the tax sale, the city notified the record owner as of the previous tax year, but did not notify by certified mail the current owner of record at the time it initiated the tax sale proceedings.  After the tax sale, 140 Reservoir Avenue filed a petition to foreclose the right of redemption against all parties claiming an interest in the property. Sepe and Slade’s Ferry challenged the validity of the tax sale because the city failed to properly notify the purported owner of record at the time of the tax sale.  They also argued that they took title free and clear of the tax sale because the city tax collector failed to reflect on a municipal lien certificate that taxes had been paid as a result of a tax sale within the last twelve months.  The Superior Court invalidated the tax sale on the basis of the city’s failure to provide notice to the owner of record, and it issued the writ of mandamus.

The Supreme Court vacated the judgment and quashed the writ of mandamus. The Court held that at the time of the tax sale the owner of record could not have claimed a right to notice because her interest in the property was forever barred by the mortgage foreclosure sale. The Court also declined to affirm the Superior Court judgment on the basis of the allegedly faulty municipal lien certificate. The Court remanded the case to the Superior Court for further proceedings on the petition to foreclose the right of redemption.

Franklin Grove Corp. v. William Drexel et al, No. 07-84

The defendants, William P. Drexel, National Land Surveyors-Developers, Inc. (National Land Surveyors), and Norbert Therien (collectively defendants), appeal from the Superior Court’s grant of a motion for summary judgment in favor of the third-party defendant, TNT Development Corporation (TNT).  The plaintiff, Franklin Grove Corporation (plaintiff), purchased property from Nadine and William Troll (the Trolls).  The Trolls hired Drexel, an engineer, to perform a delineation of wetlands.  The plaintiff hired National Land Surveyors to survey the property, as well as TNT to excavate the ground for a foundation.  After the plaintiff constructed a house on the lot, the Rhode Island Department of Environmental Management determined that the house was on wetlands and ordered restoration.  The plaintiff filed suit against the defendants and the Trolls.  The defendants thereafter impleaded TNT on an indemnification or contribution theory.  TNT moved to dismiss the third-party complaint on the theory that the economic loss doctrine barred recovery.  The motion justice converted the motion to dismiss into a motion for summary judgment, and granted the motion in favor of TNT.

The Supreme Court held that the motion justice did not err in granting the summary-judgment motion.  The economic loss doctrine provides that a plaintiff who has suffered no personal injury or property damage may not recover damages for a negligence claim.  In this case, the plaintiff’s theory of recovery is negligence, and the plaintiff has suffered only economic harm.  The Court acknowledged that the consumer exception to the economic loss doctrine did not apply because the four relevant parties, the plaintiff, Drexel, National Land Surveyors, and Therien, all were commercial entities.  Nor did it matter that the relevant construction involved a personal residential dwelling, rather than commercial real estate.  The Court noted that the proper focus was on the nature of the parties, and thus it was of no consequence whether the development project, a commercial venture undertaken by commercial entities, ultimately would yield residential homes or commercial buildings.  Finally, the Court rejected the defendants’ argument that the economic loss doctrine cannot defeat a statutory cause of action under the Uniform Contribution Among Tortfeasors Act, G.L. 1956 chapter 6 of title 10.  Because the economic loss doctrine barred the primary negligence claim, the Court concluded that the economic loss doctrine likewise prevented recovery under an indemnification or contribution theory.  Thus, the Court held that the defendants’ third-party derivative claims against TNT for indemnification or contribution also failed.

State v. Jose Parra, No. 03-619 (December 18, 2007)

The defendant, Jose A. Parra (defendant), appealed from a judgment of conviction for identity fraud after a jury found him guilty of possessing a document-making implement with the intent to use it to produce a false identification document, in violation of G.L. 1956 § 11-49.1-3.

On appeal, the defendant argued, inter alia, that the trial justice erred by denying his motion to suppress evidence of property taken from his home.  The defendant argued that he was detained illegally and that it was during that unlawful detention that the officers obtained his consent.  Because his consent resulted from an illegal detention, the defendant contended that all evidence uncovered during the search should be suppressed.

After the appeal was taken, the state filed with the Supreme Court a concession of error, recognizing that the defendant’s suppression motion should have been granted and that he is entitled to have his conviction vacated and have a new trial

The Supreme Court agreed.  After conducting an independent review of the merits of the defendant’s appeal, the Court held that the trial justice erred in denying the defendant’s suppression motion.  It held that the defendant’s detention was unlawful and, therefore, his consent to a search of his apartment presumptively was invalid.  As a result, the evidence seized in that search should have been suppressed as the fruit of the poisonous tree. 

The Supreme Court vacated the defendant’s judgment of conviction and remanded the papers of the case to the Superior Court for a new trial.

State v. Ricardo Ramirez, No. 03-27 (December 17, 2007)

The defendant, Ricardo Ramirez (the defendant), appealed from a judgment of conviction and habitual-offender sentencing arising from a conviction for first-degree murder in connection with the 1981 shooting death of police informant, William Sargent (Sargent).  On appeal, the defendant contended that the trial justice: (1) violated the defendant’s Sixth Amendment right of confrontation when he allowed prior recorded testimony of an unavailable witness to be read to the jury; (2) erred in admitting hearsay testimony; (3) violated the defendant’s Sixth Amendment right to present a defense by barring testimony of a defense witness; (4) committed reversible error when he refused to pass the case; and (5) erred in imposing an enhanced sentence based on alleged findings of fact.  Finding no error in the trial justice’s rulings, the Supreme Court affirmed the judgment of the Superior Court. 

The Court held that the defendant’s Sixth Amendment right of confrontation was not violated when the trial justice allowed the prior recorded testimony of a witness – who was ruled unavailable on Fifth Amendment grounds and eloped shortly thereafter, only to reappear after his prior testimony was read to the jury.  The Court concluded that the trial justice did not err when he declared the witness unavailable, and the Court rejected the defendant’s argument that an evidentiary hearing was required.  Further, there was no error when the trial justice refused to order the state to seek immunity for the witness. 

The Court also upheld the admission of hearsay testimony as a declaration of a decedent made in good faith in accordance with Rule 804(c) of the Rhode Island Rules of Evidence.  The Court noted that even if the testimony was erroneously admitted, it at best amounted to harmless error.

Finally, the Court held that G.L. 1956 § 12-19-2, the habitual offender statute, was not unconstitutional as applied to the defendant because prior convictions that result in an enhanced sentence need not be submitted to a jury.

For these reasons, the Supreme Court affirmed the defendant’s conviction.  

Greensleeves, Inc. v. Philip B. Smiley, Sr., et al, No. 06-107 (December 13, 2007)

The plaintiff, Greensleeves, Inc. (Greensleeves), appealed from a final judgment issued by the Superior Court.  The focus of its appeal was the extent of damages available to it pursuant to a claim of tortious interference with contract.

After rejecting the argument of defendant, Eugene W. Friedrich, that the Supreme Court lacked jurisdiction over the issue of damages for tortious interference, the Court addressed the substantive issue, clarified the scope of one of its earlier decisions, and held that Greensleeves was not precluded from seeking damages with respect to its tortious interference claim. 

Due to the regrettably long pendency of the case, the Court also encouraged the parties to engage in meaningful settlement negotiations.

Stephen C. Mackie, et al v. State of Rhode Island et al, No. 06-63 (December 11, 2007) 

The Supreme Court issued a writ of certiorari to review a Superior Court decision, in which a portion of the Lead Hazard Mitigation Act (LHMA), G.L. 1956 chapter 128.1 of title 42, was declared unconstitutional, as violative of the Equal Protection Clause of the Rhode Island Constitution. 

The plaintiffs, owners of rental properties in various locations throughout the state, challenged a provision in the LHMA that exempted owner-occupied two- and three-unit dwellings from the act’s mandates.  The plaintiffs alleged that this exemption resulted in different treatment for similarly situated property owners without regard to any lead hazard to children. 

The Supreme Court disagreed with the trial justice’s decision and plaintiffs’ contention, holding that the exemption does not constitute a violation of the Equal Protection Clause.  Rather, the Court concluded that there were rational reasons that justified an exemption for owners who live on the premises.  Although admitting that the LHMA and its exemptions would not eradicate the state’s childhood lead poisoning problem with one sweep of the legislative pen, the Court was persuaded that the General Assembly believed that targeting those areas where poisonings were most prevalent was one step toward achieving that end.

Accordingly, the Supreme Court reversed the decision of the Superior Court and remanded this case for entry of final judgment.

James D. Marcil v. Robert T. Kells et al, NO. 06-196 (December 10, 2007)

The plaintiff James D. Marcil brought this action against the defendants Robert T. Kells and Thomas C. Slater, alleging that they conspired to slander his reputation and cause him injury by defaming him to his employer and interfering with his contractual relations.  After the close of the evidence, the defendants moved for a judgment as a matter of law under Rule 50 of the Superior Court Rules of Civil Procedure, arguing, inter alia, that the statements at issue were not defamatory.  The trial justice denied the defendants’ motion. 

The jury found that the defendants had engaged in a civil conspiracy to slander Marcil, and returned a verdict of $50,000 in his favor.  The trial court denied the defendants’ subsequent motion for a new trial unless Marcil accepted a remittitur, reducing the amount of the judgment to $20,000.  Although Marcil accepted the remittitur, the defendants subsequently appealed the decision, and Marcil cross-appealed. 

On appeal, the defendants argued that the trial court should have: (1) deemed their statements substantially were true, (2) found that the statements were not defamatory by innuendo; (3) reduced damages to an unspecified nominal amount; (4) not admitted the hearsay testimony of various gas company employees; (5) found the plaintiff to be a public figure; (6) dismissed the plaintiff’s conspiracy allegation as prohibited as a matter of law; and (7) found that Kells had a qualified privilege to speak out about Marcil’s actions.  On his cross-appeal, Marcil contended that the trial court improperly granted the remittitur and further erred when he failed to instruct the jury on punitive damages. 

The Supreme Court held that the trial justice erred when he denied the defendants’ motion for judgment as a matter of law.  The Court determined that the statements at issue were not defamatory per se because they neither harmed the plaintiff’s business reputation nor alleged that he committed a crime, either on their face or by any reasonable connotation.  Therefore, the Court vacated the judgment entered on behalf of the plaintiff. 

State v. Jolon O'Connor, No. 06-149 (December 10, 2007)

The defendant, Jolon O’Connor, appealed from an order of the Superior Court denying his motion to dismiss on double jeopardy grounds an indictment for murder and assault with intent to commit a felony.  Mr. O’Connor predicated his motion to dismiss on alleged prosecutorial goading that resulted in the declaration of a mistrial.  In the event that the appeal of his motion to dismiss were to prove unsuccessful, Mr. O’Connor requested that the Supreme Court order the exclusion of the testimony of the witness whose testimony had prompted the motion for a mistrial.

The defendant alleged that the prosecutor intentionally goaded him into moving for a mistrial when the prosecutor asked the witness a question that resulted in an answer indicating defendant’s purported involvement in the drug business.  Mr. O’Connor argued that, under the standard as set forth by the United States Supreme Court in Oregon v. Kennedy, 456 U.S. 667 (1982), the constitutional provision concerning double jeopardy precluded the state from trying him again for the offenses charged in the indictment.  The prosecutor stated that he may have misunderstood a prior conversation with the witness; he further stated that he did not intend to elicit the damaging testimony, but rather thought the witness would testify as to a transaction with the defendant that involved the sale of a car.  The prosecutor stated that he had been seeking to establish that the witness and the defendant had discussed topics other than drugs, and thereby strengthen the credibility of the witness after the defense counsel had introduced voluminous phone records against him.

Utilizing the standard set forth in Kennedy and as developed by case law in Rhode Island, the Rhode Island Supreme Court affirmed the Superior Court order denying Mr. O’Connor’s motion to dismiss.  The Court noted that a trial court’s finding as to whether prosecutorial conduct was intended to provoke a defendant into moving for a mistrial is a factual issue and will not be disturbed on appeal if it is supported by competent evidence.  The Court concluded that the reactions of the original trial justice as well as the findings of the justice who heard the defendant’s motion to dismiss on double jeopardy grounds, supported the conclusion that neither the federal constitution nor the state constitution bars the retrial of Mr. O’Connor.

The Court also held that Mr. O’Connor’s request for the Supreme Court to order the exclusion of the allegedly perjurious testimony of the witness in question was not properly the subject of an interlocutory appeal.  Accordingly, the Court did not address the issue.

For these reasons, the Supreme Court affirmed the order denying the defendant’s motion to dismiss.

State v. Keith Schloesser, No. 06-257 (December 7, 2007)

The defendant appealed from a judgment of conviction on three counts of first-degree child molestation and one count of second-degree child molestation for the sexual assault of his son.  The defendant argued that the trial justice erred in denying his motion for a new trial.  Contending that the jury verdict was against the weight of the evidence presented at trial and failed to do substantial justice, the defendant maintained that the trial justice improperly analyzed the evidence in deciding the motion for a new trial. Specifically, he contended the trial justice failed to consider the physical impossibility, ambiguity, and inconsistencies of the evidence and, therefore, did not undertake the independent analysis of evidence required in deciding a motion for a new trial. See State v. Luanglath, 749 A.2d 1, 4 (R.I. 2000).

The Supreme Court concluded that the trial justice articulated an adequate rationale for denying the motion for a new trial when summarizing the evidence presented and finding that the state produced sufficient evidence to prove defendant’s guilt. 

Margaret R. Chambers v. Cassandra B. Ormiston, No. 06-340 (December 7, 2007)

The Family Court certified a question of law to the Rhode Island Supreme Court pursuant to G.L. 1956 § 9-24-27.  Two persons of the same sex had sought a divorce from the Family Court, and the Family Court certified the following question to the Supreme Court:

“May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?”

As an initial matter, the Supreme Court held that, because real controversy did exist concerning the certified question, the case was properly justiciable.

The Supreme Court proceeded to examine the certified question on the statutory level, looking first to the plain meaning of the statute, G.L. 1956 § 8-10-3(a), which grants the Family Court jurisdiction “to hear and determine all petitions for divorce from the bond of marriage * * *.”  The Court arrived at the plain meaning of the statute by applying the definition of the word “marriage” at the time of the statute’s enactment in 1961.  In carrying out this process, the Court looked to several contemporaneous dictionaries, including, notably, Webster’s Third New International Dictionary of the English Language, published in 1961, in which the primary definition of “marriage” is said to be “the state of being united to a person of the opposite sex.”  Having determined that the statute is unambiguous, the Court applied the plain meaning to the issue presented by the certified question.  On that basis, the Court concluded that such meaning indicated that the Family Court, a court of limited statutory jurisdiction, is without jurisdiction to entertain the parties’ petition for divorce because the General Assembly has granted that court the power to grant divorces only with respect to marriages between persons of the opposite sex.

The Court next observed that, even if it had found the statute to be ambiguous, established principles of statutory construction would similarly have led it to conclude that the Family Court lacks jurisdiction to grant a divorce to the parties.  Applying the noscitur a sociis principle of statutory construction, which counsels that “the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it,” the Court explained that terms in other Rhode Island statutes relating to marriage, such as “husband,” “wife,” “male party,” and “female party,” reflect a legislative assumption that the status called “marriage” in this jurisdiction consists of the union of a man and a woman.

Finally, the Court emphasized its own limited role in our tripartite governmental structure.  The Court explained that the duty of the judicial branch is not to make policy, but rather to determine the legislative intent as expressed in the statutes enacted by the General Assembly.  The Court further noted that it is not its role to amend or expand existing legislative enactments, although the General Assembly is always free to do so.

State v. Joseph Stravato, No. 05-101 (December 7, 2007)

The defendant appealed from a judgment of conviction on three counts of second-degree child molestation.  During pretrial discovery, the defendant requested all written statements by potential witnesses under Rule 16 of the Superior Court Rules of Criminal Procedure.  In response, the state produced several documents, but failed to turn over the complainant’s victim-impact statement, at least six pages of which had been written before the trial.  On appeal, the defendant raised several legal arguments, including a contention that the state’s nondisclosure of the victim-impact statement violated Rule 16.

The Supreme Court concluded that the state’s nondisclosure of the victim-impact statement was deliberate and that the defendant was entitled to a new trial. See State v. Wyche, 518 A.2d 907, 911 (R.I. 1986).  Accordingly, the Court vacated the defendant’s conviction and remanded the case to the Superior Court for a new trial.

Dennis Angell v. The Union  Fire District of South Kingstown, et al, No. 06-313 (December 6, 2007)

In this negligence action, the plaintiff appealed an order granting the defendants’ motion for summary judgment.  The plaintiff was a volunteer member of The Union Fire District of South Kingstown when he was injured during a training exercise.  The plaintiff subsequently brought a negligence action against the Fire District and one of his supervisors.  The defendants alleged that the plaintiff was covered by the “injured on duty statute” (IOD statute), G.L. 1956 § 45-19-1, and that the statute was his exclusive remedy.

The Court concluded that the plain language of the statute and the statutory scheme as a whole clearly indicated that volunteer firefighters are not covered by the IOD statute.  As a result, the Court reversed the lower court’s granting of the defendants’ summary-judgment motion and remanded it for further proceedings on the plaintiff’s personal injury claim.

State v. Raymond J. McLaughlin, No. 07-53 (December 4, 2007)

The defendant appealed from an adjudication of a probation violation on two separate underlying cases.  The hearing justice ordered the defendant to serve three years of a suspended sentence in one case, and he continued probation in a second case. 

The complaining witness testified about unwanted visits, phone calls, and text messages as well as a fight in which the defendant stole her keys.  The defendant made three arguments: (1) that the hearing justice acted arbitrarily and capriciously; (2) that the hearing justice erroneously admitted certain photographs; and (3) that the hearing justice improperly limited cross-examination. 

The Court concluded that each of the defendant’s arguments lacked merit because the standard of review for a probation violation required the Court to ensure that the decision below was not arbitrary or capricious.  The hearing justice found reasonably satisfactory evidence of a probation violation, and that decision was not arbitrary or capricious.

State v. Gabriel Seamans, No. 07-136 (December 3, 2007)

The defendant, Gabriel Seamans (defendant), appeals from a Superior Court judgment that he violated the conditions of his probation imposed in conjunction with a suspended sentence.  He challenged the hearing justice’s findings that the victim was a credible witness and that the testimony supported a violation of his probation.

The Supreme Court considered persuasive the Connecticut Supreme Court’s decision in State v. Singleton, 876 A.2d 1, 8 (Conn. 2005), which concluded that a subsequent guilty plea rendered moot a disputed probation violation.  In accordance with the Connecticut court’s reasoning, the Supreme Court held that because the defendant subsequently pleaded nolo contendere to the very offense that the defendant was disputing in his probation violation appeal, there no longer existed a controversy about whether the defendant committed the criminal conduct that gave rise to the probation violation. The Court was further persuaded that the defendant’s probation-violation judgment should stand because the hearing justice’s determination that the defendant violated the terms of his probation was neither arbitrary nor capricious.  The Court upheld the hearing justice’s determination of the victim’s credibility because he considered all the evidence and accepted one version of the events for a clearly rational reason.

Paul F. Nardone et al v. Natale Ritacco et al, No. 06-342 (December 3, 2007) 

The defendants, Natale Ritacco, Pasquale Ritacco, Frank Scavello, Salvatore Scavello, Louis Scavello, Josepha Ritacco, Domenic Capizzano, and Rose Capizzano (collectively defendants), appeal from a Superior Court judgment in favor of the plaintiffs, Paul F. Nardone and Betty Jo Nardone (collectively plaintiffs).  The trial justice located the defendants’ right-of-way along the northern boundary of the plaintiffs’ property and ordered the defendants to pay attorney’s fees as a sanction for contempt of prior orders prohibiting the defendants from trespassing upon and clearing portions of the plaintiffs’ property. 

The defendants alleged that the trial justice erred in his location of the right-of-way.  The defendants further alleged that the trial justice erred in failing to address their counterclaims for an easement by prescription and an easement by substitution over the plaintiffs’ driveway.  Finally, the defendants asserted that the trial justice erred in awarding counsel fees to the plaintiffs when there was no evidence of a willful violation of a court order.

The Supreme Court concluded that the trial justice’s determination of the location of the right-of-way was well within his discretion, given his credibility determinations and the evidence presented.  A close review of the record, however, revealed that the trial justice failed to address the issues of easement by prescription and easement by substitution, the resolution of which depended largely on factual determinations that the trial justice failed to make.  Accordingly, the Supreme Court remanded the case to the Superior Court for a new trial, to determine whether the defendants acquired an easement by prescription or an easement by substitution over the plaintiffs’ driveway.

Finally, the Court determined that the trial justice acted within his discretion when, taking the defendants’ conduct as a whole, he concluded that they paid no attention to the court orders and thus awarded counsel fees as a sanction.

State v. James Woods, No. 05-263 (November 28, 2007)

The defendant appealed his conviction for two counts of second-degree child molestation after two separate motions for a new trial were denied by the Superior Court.  The defendant argued that a new trial should have been granted because the complaining child-witness was not credible, and thus the verdict was against the great weight of the evidence.  The hearing justice disagreed and left the verdict intact.  The defendant then filed a motion for new trial based on newly discovered evidence.  The hearing justice held a full evidentiary hearing, in which the defendant offered numerous witnesses.  The defendant’s main witness testified that, after the original trial, the child complainant recanted her allegations.  The hearing justice, after careful consideration, found that the main witness was not credible, and denied the second motion.  On appeal, the defendant argued that both motions should have been granted.  The Supreme Court affirmed the Superior Court.  The Supreme Court held that the hearing justice was not clearly wrong and did not misconceive material evidence when he denied the first motion.  Furthermore, the Court determined that the second motion properly was denied because the hearing justice found that the evidence was not credible.

Edward Avila Jr. v. Newport Grand Jai Alai LLC et al, NO. 06-299 (November 21, 2007)

The plaintiff appealed the Superior Court’s grant of summary judgment in favor of the defendants for allegations of defamation and intentional interference with prospective contractual relations.  The plaintiff also appealed the denial of his cross-partial summary judgment motion on the second count of intentional interference.  The plaintiff was a jai alai player working for the defendants, who were his employer and his immediate supervisor.  At the end of 2001, the plaintiff was not rehired for the next season because his supervisor allegedly said he suspected that the plaintiff was cheating at jai alai.  Initially, the plaintiff’s employer decided to rehire the plaintiff anyway; however, the plaintiff’s supervisor threatened to quit his job if it did so.  As a result, the plaintiff was not rehired.  The Supreme Court affirmed the Superior Court’s grant of summary judgment on all counts, holding that both the defendants had a qualified privilege to make the statements with respect to the plaintiff’s performance and that there was no evidence of malice to overcome the privilege.  Furthermore, the Court upheld summary judgment for the defendant supervisor on the interference claim, because the supervisor threatening to quit his job was not improper interference as a matter of law and no reasonable jury could find otherwise.

State v. James Briggs - State v. Anna M. Mathias, No. 05-0062, 06-0013 (November 16, 2007)

The defendants appealed from the Superior Court’s denial of their motions to expunge successfully completed deferred sentence agreements.  The Superior Court found that the defendants were not entitled to an automatic erasure of their records and that both came within the ambit of the expungement statute, G.L. 1956 § 12-1.3-2, but that neither qualified for expungement under the requirements of that statute.  On appeal, the defendants argued that the Superior Court should have exercised its inherent authority to dismiss and subsequently expunge their records, rather than applying the expungement statute.  The Supreme Court affirmed the hearing justice, holding that the Superior Court lacked inherent authority to expunge the defendants’ criminal records.  The Court held that the expungement of the defendants’ records should be evaluated under § 12-1.3-2 because the defendants’ completed deferred sentences qualified as convictions for expungement purposes.  However, because neither of the defendants satisfied the requirements for expungement, the Court affirmed the denial of their motions to expunge.

John Soares v. Joseph M. Langlois, No. 06-270 (November 16, 2007)

John Soares appealed from a judgment of the Superior Court in favor of Joseph M. Langlois after the parties agreed to have a hearing on Mr. Langlois’s affirmative defense of accord and satisfaction before impaneling a jury.  On appeal, Mr. Soares argued that the trial justice applied an incorrect standard of review.  Additionally, Mr. Soares averred that Mr. Langlois failed to satisfy his burden of proving that Mr. Soares’s negotiation of a check constituted an accord and satisfaction in this case because the notation on the check failed to give him notice that payment was to be in full or final satisfaction of all claims arising from his automobile accident.

The Supreme Court concluded that the trial justice appropriately assessed the credibility of the witnesses, weighed the evidence, and made factual determinations in ruling that there had been an accord and satisfaction.  The Court also reiterated its adherence to the common-law doctrine of accord and satisfaction in which “[a]n agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which when performed is a bar to all actions.” Lamoureaux v. Merrimack Mutual Fire Insurance Co., 751 A.2d 1290, 1293 (R.I. 2000) (quoting Kottis v. Cerilli, 612 A.2d 661, 664 (R.I. 1992)).  Furthermore, the Court found that a valid accord and satisfaction had taken place because Mr. Soares had read the notation on the check and understood it to be in final satisfaction of his claims arising from the accident.

Robert O. Gonder v. State of Rhode Island, No. 05-0190 (November 16, 2007)

The applicant, Robert O. Gonder, sought review by the Supreme Court of the denial of his application for postconviction relief.  Mr. Gonder contended that his application for postconviction relief should have been granted because he was allegedly deprived of his right to the effective assistance of counsel and because he was denied the right of allocution.

In his application, Mr. Gonder alleged a number of deficiencies with regard to his trial attorney’s performance.  At the core of his argument was the allegation that, if his attorney had provided him with effective assistance, he would not have pled guilty.  Accordingly, he contended that his plea should have been vacated because it was not made knowingly, intelligently, or voluntarily. 

Utilizing the standard for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the Rhode Island Supreme Court held that Mr. Gonder had not satisfied his burden of proving that his trial counsel made errors of such magnitude that Mr. Gonder was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment. 

Mr. Gonder also contended that his application should have been granted because he was denied his right to allocution when the trial justice refused his request to make a statement on his own behalf before sentence was imposed.  Although Mr. Gonder was in fact deprived of his right to allocution, that deprivation did not result in the life sentence imposed by the trial justice being an illegal sentence, which the Supreme Court would have been required to vacate; it was rather a legal sentence illegally imposed.  When a legal sentence has been illegally imposed, Rule 35(a) of the Superior Court Rules of Criminal Procedure authorizes the trial court to correct the sentence.  However, the same rule states that a motion to correct a sentence must be filed within 120 days after the judgment has become final.  Mr. Gonder did not file a motion to reduce or correct his sentence within that time period, and therefore there was no basis for a remand. 

For these reasons, the Supreme Court affirmed the denial of the application for postconviction relief.

Donald C. Hill v. Rhode Island State Employees' Retirement Board et al, No. 06-0225 (November 16, 2007)

In this case, the plaintiff, Donald C. Hill (plaintiff or Hill), appeals from two Superior Court summary judgments entered in favor of the defendants, Rhode Island State Employees’ Retirement Board (Retirement Board) and Nancy Mayer (Mayer), in her capacity as former General Treasurer of the State of Rhode Island (hereinafter referred to collectively as state or defendants).  On January 24, 2001, the plaintiff filed suit alleging negligence, intentional infliction of emotional distress, and malicious prosecution arising from a criminal prosecution.

The plaintiff assigns error to the grant of summary judgment for malicious prosecution.  The Court rejected this argument.  A felony indictment was returned by a grand jury, and an indictment is prima facie evidence of probable cause.  This evidence could be rebutted by clear proof that the indictment was procured through fraud, perjury, or other undue means, but no such evidence was presented to the motion justice.  The grand jury found that probable cause existed for an indictment against Hill, and the Court declines to intrude upon the grand jury’s prerogatives.  Accordingly, the Court is of the opinion that summary judgment on the malicious-prosecution count was appropriate.

The plaintiff also argues that the motion justice erred in entering summary judgment for the defendants on the counts of negligence and intentional infliction of emotional distress based upon the statute of limitations.  The plaintiff asserts that the statute of limitations should not begin to run until 1998 or 1999 and that the discovery rule should control the result. 

This Court has never held, nor has it in this instance, that the discovery rule applies to tort claims such as the one presented by the plaintiff.  Even if we were to do so, we are convinced that the plaintiff discovered or should have discovered that he suffered injuries as early as 1995.  Although Hill asserts on appeal that physical manifestation of injury did not arise until his heart attack on June 27, 1998, his complaint and affidavit belie this contention and make explicit reference to injuries suffered as far back as the indictment in May 1995. 

For all the foregoing reasons, the judgment of the Superior Court was affirmed.

Gordon F.B. Ondis v. City of Woonsocket by and through its Treasurer Carol Tarzin, No. 04-285 (November 9, 2007)

The plaintiff sought declaratory and injunctive relief to enforce an easement over the defendant’s fire road to give access to his landlocked parcel.  The plaintiff alleged that the defendant’s fire road was substituted for the parcel’s deeded easement, which the defendant flooded when developing its reservoir over a hundred years ago.  In the alternative, the plaintiff argued that he should be granted an easement by necessity.  A Superior Court justice, sitting without a jury, entered judgment for the defendant.  The plaintiff appealed the Superior Court’s finding that (1) the plaintiff offered insufficient evidence of substitution, and (2) controlling law precluded an easement by necessity.  The Supreme Court affirmed that there was insufficient evidence to prove that the parties substituted the fire road for the express easement.  The Court then rejected the plaintiff’s argument to expand Rhode Island law and hold that an easement by necessity could arise without unity of title.  The Court affirmed that no easement by necessity arose because an express easement existed at the time of severance, and unity of title did not exist at the time the easement was flooded. 

State v. William Pompey, No. 06-249 (November 9, 2007)

In this case, the defendant, William Pompey (defendant or Pompey), appeals from a hearing justice’s determination that he violated the terms of his probation, resulting in the imposition of previously suspended sentences. 

The defendant argued that the hearing justice: (1) erred in admitting the out-of-court statement of the complainant under the “excited utterance” exception to the hearsay rule; and (2) erred by relying on that statement to find the defendant to be a probation violator.

The Supreme Court held that the complainant’s out-of-court statement was nontestimonial and made voluntarily during the initial response of the police officer to an emergency call for assistance.  Further, the Court decided that the rule announced in Crawford v. Washington, 541 U.S. 36 (2004), by the United States Supreme Court, does not apply to probation violation proceedings. 

The Supreme Court also decided that the admissibility of an out-of-court statement as an excited utterance is within the discretion of the hearing justice and will not be overturned unless the hearing justice was clearly wrong.  State v. Torres, 787 A.2d 1214, 1222 (R.I. 2002) (citing State v. Medina, 767 A.2d 655, 658 (R.I. 2001)).  Rule 803(2) of the Rhode Island Rules of Evidence provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule, even though the declarant is available as a witness.  The testimony of the officer in this case established that the out-of-court statement was the result of the violent episode and not some attempt by the complainant to fabricate the complaint. Therefore, the hearing justice’s characterization of complainant’s statement as an excited utterance was not an abuse of discretion, and the officer properly was permitted to testify about it. 

For all the foregoing reasons, the judgment of the Superior Court was affirmed.

David Black v. Timothy Vaiciulis, alias et al, No. 06-224 (November 9, 2007)

The plaintiff brought this action against the defendant for injuries he suffered while riding as a passenger in an automobile owned by the defendant and operated by the defendant’s employee.  The plaintiff alleged that the defendant was vicariously liable under G.L. 1956 §§ 31-33-6 and 31-33-7 for the negligent actions of its employee.  The defendant moved for a judgment as a matter of law under Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice reserved judgment.  After the jury found that the driver was negligent, but the defendant was not liable because it had not consented to use of the automobile, the trial justice granted the plaintiff’s motion on the issue of consent.  The Supreme Court affirmed the trial justice, holding that there was no issue of fact for jury consideration when the defendant admitted to allowing its employee to operate the vehicle and provided no evidence that consent was vitiated.  The Court rejected the defendant’s argument that the driver exceeded the scope of consent based on previous holdings and the legislative intent behind the relevant statutes.

Metropolitan Properties, Inc. et al v. National Union Fire Insurance Company of Pittsburgh, Pa v. CVS, Inc. et al, No. 06-296 (November 7, 2007)

National Union Fire Insurance Company of Pittsburgh, Pennsylvania (defendant) appealed from a Superior Court judgment in favor of Metro Properties, Inc. (Metro) and Travelers Property Casualty Company of America, formerly known as The Travelers Indemnity Company of Illinois (Travelers) (collectively plaintiffs).  Also parties to this action were third-party defendants CVS, Inc. (CVS), Gold Car Realty (Gold Car), and its general partners, Anthony A. Carcieri and David Golden.  In December 1998 and January 1999, two CVS properties experienced property damage.  Metro, CVS’s real estate manager, sought a declaratory judgment that Metro was an insured and was covered under the defendant’s insurance policy.  The defendant filed a counterclaim against Metro and a complaint against CVS and Gold Car, seeking a declaration that Metro was not covered under the policy based on the exclusionary language contained in the policy.

The Supreme Court held that the policy clearly and unambiguously provided that the real estate manager was an insured; therefore the plaintiff was an additional unnamed insured.  Despite any exclusionary language in the policy, the Court held that in applying the cross-liability provision, the plaintiff was covered under the policy.  Accordingly, the Court required the defendant to pay the plaintiff those sums that occurred as a result of the property damage. 

A.F. Lusi Construction, Inc. v. Rhode Island Convention Center Authority, No. 06-106 (November 7, 2007)

In this construction contract case, the plaintiff, A.F. Lusi Construction, Inc. (plaintiff), appealed from a Superior Court judgment in favor of the defendant, Rhode Island Convention Center Authority (defendant).  Judgment was entered pursuant to an order granting the defendant’s motion to dismiss the plaintiff’s complaint in its entirety for failure to state a claim upon which relief may be granted and for lack of standing.  The Supreme Court affirmed the judgment of the Superior Court dismissing this action, holding that the plaintiff would not be entitled to relief under any set of facts that could be proved in support the five counts of its complaint. 

According to the Court, the Rhode Island State Purchases Act, G.L. 1956 chapter 2 of title 37, did not apply to contracts that the defendant entered into to acquire and improve the Dunkin’ Donuts Center-Providence.  Further, the Court concluded that the plaintiff failed to state a claim upon which relief could be granted either under Rhode Island common law or the Rhode Island Constitution.

Angelo Ramirez v. State of Rhode Island, No. 06-229 (November 2, 2007)

Angelo Ramirez appealed from the denial of his third application for postconviction relief by the Superior Court, contending he was deprived of those constitutional rights that guard against ineffective assistance of counsel and multiple punishments for the same offense.  Ramirez mistakenly shot a four-year-old girl during a high-speed car chase, and narrowly missed shooting her brother. After trial, relying upon the theory of transferred intent, the jury found Ramirez guilty of assaulting the girl with intent to murder and assaulting her brother with a dangerous weapon.

Ramirez appealed and the Supreme Court affirmed the judgment of conviction.  He then filed a pro se application for postconviction relief in the Superior Court.  After a hearing, at which Ramirez was represented by counsel, the trial justice denied the application. Thereafter, Ramirez filed a second postconviction-relief application, which the trial justice also denied.  With the assistance of counsel, Ramirez filed a third application for postconviction relief, which included new claims not presented in his earlier postconviction-relief applications. The trial justice denied the third postconviction-relief application, reasoning that Ramirez “entreats this Court to consider yet a third petition. Ramirez is entitled to no such consideration at this juncture, and this Court finds that the interests of justice do not invite any such consideration.”

On appeal, the Supreme Court affirmed the judgment of the Superior Court. Under G.L. 1956 § 10-9.1-8, which codifies the doctrine of res judicata for postconviction-relief applications, an applicant cannot bring forth new claims in subsequent applications for postconviction relief that could have been, but were not, raised in an earlier postconviction-relief application—absent an “interest of justice” showing.  Since Ramirez raised claims for the first time in his third postconviction-relief application, yet provided little reason why the arguments could not have been raised in either his first or second application, the Court determined that § 10‑9.1‑8 barred consideration of his new claims.   

In re Brooklyn M. et al, No. 05-335 (November 2, 2007)

This case involved an appeal from a Family Court decree terminating the parental rights of the respondent, Amanda D., with respect to her children, Brooklyn M. and Isaiah D., on the grounds of chronic substance abuse and twelve months in the custody of the Department of Children, Youth and Families (DCYF) with no substantial probability of the children’s safe return to Amanda’s care within a reasonable period of time.

On appeal, the respondent challenged the trial justice’s finding of her unfitness as a parent and contended that numerous factors contributed to the risk of erroneous fact-finding by the Family Court. Among other contentions, Amanda argued on appeal that the trial justice erred in allowing into evidence certain mental health diagnoses and also that he improperly qualified as an expert a chemical dependency professional who had not received a license in that field at the time that she interacted with Amanda. The respondent also asserted that the trial justice overlooked or misconstrued evidence in making its determination that DCYF made reasonable efforts at reunification. 

After a careful review of the record, the Supreme Court affirmed the trial justice’s determinations that Amanda was unfit as a parent, that DCYF had made reasonable efforts at reunification, and that termination of Amanda’s parental rights was in the best interests of the children. Therefore, finding no clear error, the Supreme Court upheld the Family Court decree terminating Amanda’s parental rights.

State v. Armando Merced, No. 06-262 (October 25, 2007)

The defendant, Armando Merced, appealed from a conviction of one count of first-degree child molestation sexual assault, in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2, and two counts of second-degree child molestation sexual assault, in violation of §§ 11-37-8.3 and 11-37-8.4.  On appeal, the defendant first argued that the trial justice erred by allowing expert testimony that he alleged improperly bolstered the complaining witness’s testimony.  Second, he alleged that the trial justice abused her discretion by allowing leading questions during redirect examination.

The Rhode Island Supreme Court affirmed the trial court on both issues.  The Court held that the defendant waived his argument concerning improper bolstering under Rhode Island’s waive-or-raise rule because he failed to object to the testimony at trial.  The Court further held that the trial justice was well within her discretion to allow the use of leading questions on redirect examination of the eleven-year-old complaining witness.  The Court reiterated the rule in Rhode Island that a child witness who is confused or reluctant to testify may be asked leading questions to direct testimony to the desired topics and incidents.

John Moniz v. State of Rhode Island, No. 06-211 (October 25, 2007)

John Moniz (Moniz) appealed from the denial of his application for postconviction relief in the Superior Court.  He contended that the toxicology report relied upon to convict him of possession of marijuana with intent to deliver was erroneous because the testing of the contraband predated the actual offense date by slightly more than one month.  Accordingly, Moniz argued that he did not voluntarily and intelligently waive his constitutional rights, that he received ineffective assistance of counsel, and that he was not properly advised of the immigration consequences of his plea of nolo contendere.

The Supreme Court held that because the trial justice clearly explained the charges and Moniz acknowledged, on the record, that he did engage in the charged unlawful activities, Moniz’s plea was voluntary and intelligent.  The Court also held that Moniz failed to meet the two-prong Strickland test for ineffective assistance of counsel, concluding that counsel’s assistance was reasonable, considering all the circumstances.  Finally, the Supreme Court noted that although the trial justice was not obligated to advise Moniz of any immigration consequences, the trial justice nevertheless sufficiently explained the potential implication of his nolo contendere plea.

State v. Norman Beechum, No. 04-174 (October 25, 2007)

The defendant, Norman Beechum (defendant), appealed his conviction for second-degree murder after a bench trial based on stipulated facts.  His appeal was based solely on the constitutionality of Rhode Island’s jury selection process under the Sixth and Fourteenth Amendments to the United States Constitution, article 1, sections 2, 7, and 10 of the Rhode Island Constitution, and 18 U.S.C. § 243.  The Rhode Island Supreme Court affirmed the defendant’s conviction because he presented no justiciable issue for the Court’s review.

The Court noted that the requirement of justiciability is one of the most basic limitations on its power to review and issue rulings.  The defendant appealed his conviction based on improper jury selection when he was convicted on an amended indictment and without a jury trial.  Because the indictment was amended without the use of a grand jury and he was not convicted by a petit jury, jury selection was not a justiciable issue in the case. 

Additionally, the Court held that the defendant did not preserve his appeal based on jury selection.  The Court concluded that the rule barring conditional pleading articulated in State v. Keohane, 814 A.2d 327, 329 (R.I. 2003) was violated when the defendant agreed to a trial based on stipulated facts without any cross-examination.  The Court emphasized that the rule in Keohane cannot be avoided without sufficient adversarial proceedings at trial.